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Keep Calm, Opt Out, and Carry On

Ariel Katz
Saturday, June 9, 2012

Originally posted on Prof. Katz's blog.

One of the questions that troubles many Canadian universities who need to decide whether to accept Access Copyright offer-that-they-can’t-refuse is what will be the consequences of not signing the AUCC-brokered Model License. One fear, which I have addressed in an earlier post, concerns the risk of being liable for copyright infringement in case that some infringing copies would be made on campus. The other fear is the possibility that the Copyright Board will approve Access Copyright’s Proposed Tariff, and that upon its approval, would become mandatory and retroactive.

The precise effect of an approved tariff is a novel question and there is very little, if any, binding case, and virtually no commentary, and admittedly, my own views on this question have evolved. Therefore, this post reflects some of my recent thinking on this question. In brief, my opinion is that the view that once approved, the tariff will be mandatory is not mandated by the Copyright Act and will be in contrast to basic legal principles. Parliament did not and could not have indented to allow such an outcome, and even if it did, it is doubtful whether this would be a constitutionally valid exercise of its legislative power.[1]

The GSU Copyright Case: Some Canadian Perspectives

Ariel Katz
Tuesday, May 15, 2012

This post was originally published on Prof. Katz's blog.

In April 2008, three publishers, Cambridge University Press, SAGE Publications, and Oxford University Press, filed a copyright infringement lawsuit against Georgia State University, alleging that GSU infringed their copyrights by allowing professors to upload excerpts from books onto the university’s electronic reserve system (ERes). The complaint alleged “systematic, widespread, and unauthorized copying and distribution of a vast amount of copyrighted works”, and argued that GSU “has facilitated, enabled, encouraged, and induced Georgia State professors to upload and post to these systems - and Georgia State students simultaneously to download, view, print, copy, and distribute - many, if not all, of the assigned readings for a particular course without limitation.” Unless GSU’s “infringing digital distribution practices are enjoined", the complaint asserted, "Plaintiffs, authors, and the publishing community at large will continue to face a certain, substantial, and continuing threat of loss of revenue, which will in turn threaten Plaintiffs' incentive to continue supporting and publishing the cutting-edge scholarship upon which the academic enterprise depends.”

The Difference Between Lunchtime Prayer and a Jesus T-shirt

Ed Morgan
Wednesday, May 9, 2012

This commentary was first published by Prof. Ed Morgan in The Globe and Mail on May 9, 2012.

A public school in Toronto thinks a clergyman can be invited to conduct Islamic prayers at lunchtime on school grounds. As a school trustee explains it, “What we’re doing is what we should be doing as a school board and that is accommodating students’ needs no matter what their religion is.”

A public school in Chester Basin, N.S., thinks a student can be prohibited from wearing a T-shirt with a Christian message on school grounds. As school trustees explain it, “It is expected that students will not wear clothing with messages that may offend others’ beliefs, race, religion, culture or lifestyle.”

Does Canadian law really get such a failing grade?

Whether religious expression is permitted in schools turns on the meaning given to “freedom of religion” and “freedom of expression.” The confusion over this question calls for a review class on the Canadian Charter of Rights and Freedoms.

Beginning in the mid-1980s, the courts determined that public schools cannot teach religion in a doctrinal way. While they can, and often do, offer history and social-studies classes that survey world religions, the mandatory separation of church and state prohibits them from teaching religion as it is taught to adherents of that religion – i.e., as a matter of belief rather than general knowledge.

Telus Funds Ignore Governance

Anita Anand
Monday, April 30, 2012

This commentary was first published in the Financial Post on April 28, 2012.

The collapse of Magna’s dual-class share structure in 2011 via an insider bid for Frank Stronach’s holdings raised eyebrows because of the unprecedented pay out of an 1,800% premium that Mr. Stronach (through a private holding company) received in the transaction. Dual-class structures are once again in the spotlight with the recent proposal by Telus to eliminate its dual class structure. It was clear that Magna concerned securities regulators at least from a disclosure standpoint. By contrast, regulators have been conspicuously silent on the Telus transaction.

Under the terms of the Telus proposal, which goes to a shareholder vote on May 9, each non-voting share would be converted to a common share on a one-for-one basis. The two classes of shareholders will vote separately on the transaction. Two-thirds approval from each class is required in order for the votes to pass. Thus, a concern about shareholder participation that existed in previous dual class transactions, such as Canadian Tire, falls away since shareholders in each class have a vote.

Foreign Affairs: A Delicate Balancing Act

Ed Morgan
Wednesday, April 18, 2012

This article by Prof. Ed Morgan was originally published in The Lawyers Weekly, April 13, 2012.

When it comes to conducting foreign affairs, it is well established that the constitution puts the weight of responsibility on the federal government. But in recent years, the courts have deviated from that rule as often as they have invoked it.

In the Afghan prisoners case, the Federal Court of Canada explained that the government owes no constitutional duty when, after questioning, the military turns detainees over to a foreign government. The judgment presumed that Canadian forces require flexibility, and enjoy the discretion to deviate from domestic rules when they deal with an allied state and prisoners of war.

The Best Possible Outcome for Universities, Really?

Ariel Katz
Tuesday, April 17, 2012

This post was posted originally on Prof. Katz's blog.

Access Copyright and the Association of Universities and Colleges of Canada (AUCC) announced yesterday that they had negotiated a Model Licence that would allow universities to reproduce copyright protected materials in both print and digital formats. In a joint media release issued by Access Copyright and the AUCC, Paul Davidson, president of the AUCC, was quoted as saying "We believe that this negotiated agreement provides the best possible outcome for universities, their students and faculty." Really, Mr. Davidson, Really?

Ottawa’s Bogus Refugee Bill

Audrey Macklin
Friday, February 24, 2012

This commentary by Prof. Audrey Macklin and Lorne Waldman was first published on the Toronto Star website on Feb. 22, 2012.

Jason Kenney, the minister of Citizenship and Immigration, knows who the real refugees are. Or at least he knows which ones are “bogus”: refugee claimants from Mexico or Sri Lanka or Hungary are bogus. Bogus refugees include those who use smugglers to overcome the barriers to lawfully reaching countries like Canada which, by signing the refugee convention, have promised not to send back persons fleeing persecution.

Kenney’s system-abusing bogus refugees include those fleeing discrimination, oppression and hardship not quite horrific enough to satisfy the standards required by the jurisprudence defining and applying the refugee definition. Kenney does not mention that close to 40 per cent of the claimants were recognized as genuine refugees last year. Like falling crime statistics, that is an inconvenient truth for this government. Kenney manages to convert the fact that the system does not confer refugee protection on all who seek it into evidence of system failure.

Minister Kenney’s Ban on Face Coverings is Ultra Vires

Audrey Macklin
Friday, February 17, 2012

Not only is Minister Kenney’s ban on face coverings a gratuitous insult to Muslim women, it’s ultra vires.

In the wake of all the publicity about the Minister of Immigration’s decree that no one shall be allowed to go through the citizenship ceremony with her face covered, I thought I'd find out how the ban on face coverings was authorized in law. It appears that the ban is buried in the Operations Manual on citizenship ceremonies.  The Operations Manual provides guidance to citizenship bureaucrats (including Citizenship Judges) about how to interpret and apply the law -- the Citizenship Act and the Citizenship Regulations.  Since they are only guidelines, they do not have the force of law, and are invalid to the extent that they contradict the statute or the regulations.

You can find the citizenship manual here (PDF) (see s. 6.5). The manual contains an elaborate set of instructions about how citizenship officials shall respond if a woman is both uppity and oppressed enough to show up with her face covered.

Don’t Throw in the Towel: Systemic Risk in Securities Markets Must be Federally Regulated

Anita Anand
Friday, February 17, 2012

An edited version of this editorial appeared in the Financial Post on February 10, 2012.

In its recent decision, the Supreme Court nixed the federal proposal for a national securities regulator, finding that its proposed scheme was unconstitutional.  Admittedly, the federal government’s proposal largely (and intentionally) uploaded the current provincial regime to a federal statute. The Court held that, while aspects of the proposed legislation were within the federal wheelhouse, these could not justify a “wholesale takeover” of securities regulation in Canada. 

Nonetheless, the Court’s decision should not be read as foreclosing on a federal role in securities regulation.  The judgment specifically observes that provinces would be incapable of enacting legislation to effectively address systemic risk and comprehensive data collection.  Indeed, the Court expressly stated that “[t]he need to prevent and respond to systemic risk may support federal legislation pertaining to the national problem raised by this phenomenon”.

Governance Issues: The UofT-Access Copyright Agreement

Ariel Katz
Wednesday, February 15, 2012

First posted on Prof. Katz's blog.

In addition to serious copyright, privacy, and academic freedom problems arising from the Agreement signed last week between UofT and Access Copyright, the way it has been handled so far raises some questions about whether it is consistent with UofT’s governance procedures.

No serious consultation or discussion has taken place before the Agreement was signed, although, interestingly, s. 22 of the Agreement does contemplate it being conditional upon “applicable Governance approval”. It seems only natural that an agreement with wide, deep, and long-term implication such as this one would be subject to governance approval, yet it is less clear that UofT's Administration is going to seek the appropriate approval. The Administration has not done it yet, and in fact, there are worrying signs that the Agreement will not get the scrutiny that it deserves. I hope I'm misinterpreting these signs.

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