Nexus: Canadian copyright law

[Guest Post] Can the Government Get Your Copyright? The Supreme Court of Canada Says “Yes”.

Read

This Kat found it quite fascinating when she saw last week that Canada’s Supreme Court ruled on the question of whether the Government of Ontario, Canada owned copyright in a work created for someone else (home owners, developers and other private citizens who commission surveyors), but used by a government partner. Coming on the heels of a similar public interest consideration in Uganda, this Kat is excited that Professor Jeremy de Beer (University of Ottawa) [disclaimer: Prof de Beer represented the Intervener Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic in the Supreme Court] is able to provide this detailed explanation and analysis of the judgment of Canada’s top court:

Can the Government Get Your Copyright? The Supreme Court of Canada Says "Yes"

by Jeremy de Beer

“When and how can the government get copyright protection? In a recent Canadian decision on Crown copyright, Keatley Surveying v Teranet, the Supreme Court has for the first time addressed that issue. Its guidance, however, will be hard to implement in practice. Parliament should respond by reforming the century-old statutory provision.

The decision ends a class action lawsuit brought by land surveyors against a company that makes land survey plans available electronically. The company, Teranet, partnered with the provincial government of Ontario to build a database of documents about all land in Ontario, including digital surveys that mark the legal boundaries of property in the province. When surveyors sued Teranet, one of the company’s defences was that surveyors don’t own the copyrights; the government does. Thus, an issue of Crown copyright arises.

The Test for Crown Copyright
The Court finds, by virtue of section 12 of Canada’s Copyright Act, that copyright belongs to Her Majesty in several different scenarios. Most clearly, the government gets copyright in a work that is prepared by the government, including employees of Her Majesty or any government department (para 64).

This copyright is the Crown's! (Image: Jeremy de Beer)

The government also gets copyright in a work that an independent contractor prepares under government’s direction and control (para 65). In effect, the government may own copyright by reason of a “work-made-for-hire” [the work-for-hire rule does not ordinarily exist in Canadian copyright law].

Copyright can also belong to the government if a work is published by or under the direction or control of the government. That aspect of the test for Crown copyright is the most convoluted and controversial. The seven-member panel of the Court split four against three, concurring in the result but for different reasons.

No wonder the judges cannot agree on the proper statutory interpretation. The provision is described as a “legislative monstrosity” with “atrocious drafting” (para 55). See for yourself:

Where copyright belongs to Her Majesty
12 Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.

“Merely making someone else’s work available to the public is insufficient”, writes Justice Abella for the majority of four judges. While the plain language of the Act appears to give the government copyright in any work “published by” the government, such an interpretation “profoundly derogates from the general scheme of the Act” (para 67).

The three other judges, in reasons coauthored by Justices Côté and Brown, agree that “a literal reading would effectively empower the Crown to expropriate copyright from independent creators in any copyrightable work merely by publishing the work itself or causing a third party to publish the work” (para 97).

It's a split decision (Image by Jeremy de Beer)

According to the four-judge majority, to acquire someone else’s copyright, the government must exercise “direction or control over the publication process, including both the person publishing the work and the nature, form and content of the final, published version of a work” (para 67). In the case of land surveys made available online, the majority observes that the government has “complete control” over the publication process.

But what about other situations: Intellectual property applications made available to the public by governments? Securities prospectuses filed with and published by financial regulators? Or lawyers’ pleadings prepared according to strict rules and then put onto court websites?

Those examples have some of the “relevant indicia of governmental direction or control”, which according to the majority “may include the presence of a statutory scheme transferring property rights in the works to the Crown; a statutory scheme which places strict controls on the form and content of the works; whether the Crown physically possesses the works; whether exclusive control is given to the government to modify the works; the opt-in nature of the statutory scheme; and the necessity of the Crown making the works available to the public” (para 69).

The minority of three judges criticize the majority’s “question of degree” test, because it provides no future guidance on what less than complete control is “sufficiently extensive” for Crown copyright. The lack of guidance, they write, “will inevitably create instability in Crown copyright” (paras 110-12).

The minority would, therefore, focus on acts of preparing or publishing the work, not the work that is prepared or published (para 117). Furthermore, the minority would vest Crown copyright only in “a government work” that is prepared by or under the direction or control of the Crown (para 99). While any kind of literary, dramatic, musical, or artistic work may be Crown copyrightable, a government work is a work that “serves a public purpose” (paras 99, 141). The minority writes: “These will be works in which the government has an important interest concerning their accuracy, integrity, and dissemination” (para 127). Crown copyright, under this theory, is basically a tool to control distribution of and access to a work.

In the end, all judges agree that the scope for Crown copyright is narrow. Nonetheless, in this case, surveyors lose their copyright to the government; either because of the complete government control over the process of making surveys available to the public, or because the accuracy, integrity, and dissemination of these works are crucial to proper functioning of the land registry system in Ontario.

The surveyors’ class action is effectively over. But there are broader impacts to consider.

Balance is at the heart of copyright law
For many years Canada has been at the forefront of a shift in global copyright law that balances both authors’ and users’ rights. In Keatley the Court summarizes Canada’s pathbreaking copyright jurisprudence but goes even further than previous decisions to emphasize how balance is “at the heart” of copyright law (para 140).

The Court clarifies that fair dealing is only one “emblematic” component of the balancing approach to copyright law in Canada. Both the majority and minority concurring reasons speak powerfully of users’ rights, not merely interests or expectations (paras 46, 140). The Court also explains that “the users’ rights framework” is “so integral to Canadian copyright law” that “[a]ll provisions of the Copyright Act … must be interpreted with this balance in mind”.

Crown copyright is “uniquely amenable to realizing a balance”, in effect recognizing the government as both a creator of its own works and a user of others’ works (para 47).

Should public legal documents be copyrightable?
Multiple interveners before the Court argued that no one should own sources of law or public legal documents, such as statutes, regulations, and judicial decisions. Copyright, whether owned by the Crown or anyone else, can impede free access to the law, which everyone has the right to know.

The minority judgment expressly acknowledges this concern about copyrighting the law but would “leave this issue for another day” (para 142). This downplays the fact that plans of survey are actually sources of law. In Ontario, like many jurisdictions, registered plans of survey mark the legal boundaries of property and are relied upon to determine property rights and obligations (paras 82, 143).

Similar issues are playing out now in the United States, where the U.S. Supreme Court has agreed to hear a case involving copyright in annotated legal code: Georgia, et al. v. Public.Resource.Org, Inc. Back in Canada, “another day” could come soon, as the Supreme Court is considering whether to take another Crown copyright case involving ownership of the Canadian Standards Association’s Electrical Code, which is incorporated by reference into several regulations and statutes.

More fundamentally, neither party had reason to raise the obvious question of whether copyright can subsist in plans of survey at all. While Canada’s Copyright Act, like the Berne Convention, defines an “artistic work” to include maps and plans, the surveys at issue in this case can hardly be original. Plans of survey must, to be useful, accurately represent facts; there is little room for the skill and judgment copyright requires.

Over to Parliament
The majority reasons in Keatley conclude by noting that section 12 of the Copyright Act is a century old. The Court writes: “Parliament is of course free to consider updating the provision in its current review as it sees fit” (para 90). That language, combined with the Court’s quote about this legislative monstrosity, is about as blunt as judges can be about the need for statutory reform.

Beaker, looking at Parliament (Image by Jeremy de Beer)

A Parliamentary committee recently held hearings and reported on Canada’s Copyright Act. Crown copyright was heavily criticized: “In fact,” writes the Committee, “no witness supported its continuation, at least in its current form – a rare point of consensus.” The Committee recommended changing the law.

The United Kingdom, Australia, and New Zealand have all abandoned the atrocious drafting of section 18 of the original 1911 UK Copyright Act that Canada’s section 12 still mirrors. As Crown copyright takes on heightened importance in the era of big data and mass digitization projects, which often involve public/private partnerships, the task now falls to Parliament to update Canada’s Copyright Act”.

Guest Post: Copyright Troll-[ing] Canadian Courts? Canada’s First Reverse Class Action Copyright Case

By 0x000216

Read

0 Comments

This Kat was very intrigued to hear about Canada's first reverse class action copyright case brought by film production companies against a class of a unidentified and potentially unlimited number of Canadians for copyright infringement. She is delighted that Kristianne C. Anor and Sanjit Rajayer are able to provide this detailed explanation and analysis of the case:

Kristianne C. Anor and Sanjit Rajayer are third year law students at the University of Ottawa and are interning at the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, who is intervening in this case.

Yesterday and today (24 September 2019), the Federal Court of Canada began hearing arguments for and against certification of Canada’s first reverse class proceeding in a file-sharing copyright infringement case. The plaintiffs, Voltage, LLC, Cobbler Nevada, LLC, PTG Nevada, LLC, Clear Skies Nevada, LLC, Glacier Entertainment S.A.R.L. of Luxembourg, Glacier Films 1, LLC, and Father & Daughters Nevada, LLC (collectively, “Voltage”), are suing a proposed defendant class of a potentially unlimited number of Canadians for copyright infringement. The defendant class members are not only unlimited in number; they are unidentifiable—so the representative defendant and intervener claim. The representative defendant is Robert Salna, an owner of an apartment complex who offers WiFi to his tenants. The intervener is the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (“CIPPIC”), a non-profit legal clinic at the University of Ottawa. Because the defendants are potentially unlimited in number and unidentifiable, Salna and CIPPIC claim, the class proceedings should not be certified.

A number of public interest concerns are at stake. If the reverse class proceeding is certified, it would burden internet subscribers, including free public WiFi providers, with onerous obligations to closely restrict, monitor, and control the access and use of their internet connection. Access to the internet, a basic right in many jurisdictions, would be severely jeopardized. From a copyright policy perspective, the unprecedented enforcement mechanism Voltage seeks to set up would be so rights-invasive, that it may be a proverbial cure worse than the disease. It would encourage the monetization of copyright claims and speculative settlements, which Canada has traditionally guarded against. From an access to justice perspective, the proceedings could deny fair and effective representation to thousands of internet subscribers. Below, we break down the legal issues in the case, and the challenges it poses.

Voltage’s Copyright Infringement Claim

High voltage encounter!
Image: Jennifer C

Voltage is a group of movie production companies that claim copyright in the movies “The Cobbler”, “Pay the Ghost”, “Good Kill, “Fathers and Daughters”, and “American Heist.” Voltage claims that a number of unidentified internet subscribers infringed its copyright in these movies by either: (1) offering the movies for download through BitTorrent software, (2) offering to rent, sell, or distribute the movies, or (3) authorizing others to infringe voltage’s copyright by providing internet access through their internet subscription. These claims are framed under sections 27(1), 27(2), and 27(2.3) of Canada’s Copyright Act respectively. The first two claims are against defendants Voltage calls “Direct Infringers”; the third against “Authorizing Infringers”. Voltage is seeking to have its claim against “all Direct Infringers and Authorizing Infringers residing in Canada” adjudicated in a single proceeding by certifying the “Direct Infringers” and “Authorizing Infringers” as a single class represented by Salna.

Voltage’s claim shows that the only way it identifies the potential defendants is by their IP address. It claims to have identified Salna as an internet subscriber whose IP address was associated with file-sharing activity involving its movies through the BitTorrent protocol. Voltage does not specify whether it has identified any other such persons.

Background: International Copyright Troll Litigation

While some may know Voltage by their films, courts and lawyers refer to them and similar plaintiffs as “copyright trolls”. A copyright troll is a party that aggressively enforces its copyright through litigation in an effort to monetize assertions of infringement. There has been significant case law in the U.S., U.K., Australia, Denmark, and Singapore surrounding copyright trolls generally and Voltage specifically. All of the copyright troll litigation share the same modus operandi: plaintiff owns a copyright to a film; plaintiff sues numerous John Does identified in a single action for using BitTorrent to copy the movie, all identified using the forensic software companies “Guardaley” or “MaverickEye”; plaintiff subpoenas the Internet Service Providers to obtain the identities of these Does; if successful, plaintiff will send out demand letters to the Does; and, finally, Does will send a settlement to the plaintiff. Where the Does do not respond, the trolls obtain default judgments. Very rarely do these cases reach the merits. Never has an international jurisdiction certified a class of respondents. It appears that Voltage has been on a world tour of trolling Courts for copyright infringement, with stints in the UK, Australia, Singapore, and the US. Canada seems to have been its next stop. And Voltage has attempted an ambitious campaign here.

Potential Hurdles to Voltage’s Proposed Reverse Class Proceeding

To merit certification of reverse class proceedings under section 334.16 of Canada’s Federal Courts Rules, Voltage must demonstrate that its claim satisfies five criteria: (1) the pleadings must disclose a reasonable cause of action; (b)there must be an identifiable class of two or more persons; (c) the claims of the class members must raise common questions of law or fact; (d) a class proceeding must be the preferable procedure for the just and efficient resolution of the common questions of law or fact; and (e) there must be a representative defendant who would fairly and adequately represent the interests of the class.

How far can you stretch [your copyright] ?
Image: Ravenblack7575

While there are several potential hurdles to Voltage’s proposed reverse class proceeding, perhaps the biggest issues it will likely face are that: 1) Voltage’s class definition does not include a range of time for alleged infringement; 2) Voltage lumps “Direct” and “Authorizing” infringers in the same class; and 3) Voltage’s list of unidentified IP addresses is not synonymous with a list of putative defendant class members. Salna and CIPPIC have raised these issues before the Federal Court.

First, without specifying a time range for the infringement to have occurred (i.e. between June 2013 to December 2013), Voltage’s proposed defendant class can continue to grow with no end in sight, potentially reaching an unlimited number of proposed defendants. A growing class of potential defendants has never been certified in Canada, and the Supreme Court of Canada has refused to certify such classes. Second, lumping both “Direct” and “Authorizing” infringers together necessarily assigns the same degree of culpability for infringement. Salna maintains he did not offer the works for upload and does not know who did. How could he be held to the same degree of liability for copyright infringement as actual infringers, when all he did was offer WiFi to the tenants in his building? Third, while a public-facing IP address is unique, it is not necessarily tied to any one device or individual. For example, all computers using a coffee shop’s free internet may share an IP address. Likewise, all members of a household, like roommates, or guests thereof using household internet, will share an IP address. Similarly, all tenants using an apartment building’s WiFi will share the same address. This poses challenges for the identifiability of potential class members as well as the manageability of the proceedings.

A reverse class action is not the appropriate procedure for a BitTorrent file-sharing case

A reverse class proceeding is a proceeding in which one or more named plaintiffs claim against a class of defendants represented by one or more members of the class. In theory, such proceedings distribute the cost of litigation among members of the defendant class, affording individual defendants a robust defence. By collectivizing small claims, reverse class proceedings ostensibly incentivize defendants to modify their behaviour, which might otherwise go unchecked.

However, these benefits would likely be lost in Voltage’s proposed reverse class proceedings.

Voltage’s proceedings are unlikely to save court resources for two reasons. First, because Voltage’s reverse class proceedings targets internet subscribers, who may not be the alleged infringers, the proceedings may be entirely fruitless. Any internet subscribers who receive a notice of the proposed class can simply opt out of the proceedings, as they are entitled to do under Canadian law. Second, Voltage’s claim against each internet subscriber is heavily based on determinations of fact, such as the subscriber’s extent of control over individual internet users, the scope of authorization of the internet user’s activity, the subscriber’s knowledge of the infringing activity, and the subscriber’s actions to stop the infringing activity. Salna’s unique circumstances exemplify this complexity. As an internet subscriber providing Wifi services to tenants, there are an innumerable and myriad factual scenarios in which an individual user could have his subscription. Some, including malicious users and legitimate VPN users, may be unknown to Salna himself. Section 27(2.4) of Canada’s Copyright Act provides a non-exhaustive list of fact-based criteria that courts must weigh to determine whether the provision of a service amounts to authorizing copyright infringement. Applying these criteria to each defendant would require a separate trial, and repetitive fact-finding inquiries, in each case. Since such a proceeding would be unmanageable and would lose the main benefit of class proceedings: judicial economy.

As CIPPIC and Salna argue in their written submissions, it is unlikely that the costs of the proceeding would be distributed among the defendants because there is no incentive for any of the defendants to share the costs. Salna and his two tenants, the representative defendants, are the only parties who will be involved in the defence until the end of the litigation. Whatever the outcome of the litigation, the other defendants are unlikely, even if they find out about the litigation, to want to pay for it. Voltage has not proposed any mechanism by which the representative defendants’ costs may be distributed as is typically the practice in class proceedings in Canada.

Voltage seeks to set up a small-claims style litigation system that will “award” the alleged copyright infringers with a “speeding ticket.” Not only is this unlikely to act as a deterred to online copyright infringement, the Canadian Parliament had already rejected such a system in favour of a less rights-invasive “Notice-and-Notice regime.” In 2012, Canada formalized the Notice-and-Notice system in its Copyright Act, effectively rejecting New Zealand’s approach of setting up a Tribunal to award “speeding tickets” to online copyright infringers.

Stop right there!
Image: jypsygen

In Canada, reverse class actions have been used very rarely. In the three reported reverse class actions, courts have certified defendant classes which consisted of a limited number of identified persons. The plaintiffs had a claim against each defendant. The determination of the plaintiff’s claim depended on factual and legal issues that were common to all defendants. There would have been no need for separate trials. Voltage’s proposed class proceeding does not appear to have any of these features.

Conclusion

Certifying this reverse class action would open the doors to a world of unfair, unmanageable, inefficient, and abusive reverse class proceedings. The US, UK, Australia, and Singapore have all refused reverse class certification. Similarly, the Federal Court of Canada ought to deny class certification and stop Voltage trolling Canadian Courts.

Friday frivolity: Beyonce's pirated bikini

By 0x000216

Read

0 Comments

Nexus

[Guest Post] Can the Government Get Your Copyright? The Supreme Court of Canada Says “Yes”.

Guest Post: Copyright Troll-[ing] Canadian Courts? Canada’s First Reverse Class Action Copyright Case

Friday frivolity: Beyonce's pirated bikini

Recent Posts

Facebook