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Universities and Copyright: Contrast and Compare

Ariel Katz
Sunday, February 5, 2012

Originally posted on Prof. Katz's blog on Feb. 1, 2012.

On Monday evening, Access Copyright and the Universities of Western Ontario and Toronto announced that they have entered into a new licensing deal.  The UofT agreement is available below, and I was told that the terms of the agreement with Western are identical.

Although the joint media release announcing the deal was gleeful, as a UofT Faculty member I am disappointed and concerned.  The agreement is one big step backwards for UofT, and one giant leap for Access Copyright.  Access Copyright could not have hoped for more, and UofT lost an opportunity to stand up, show leadership, and ensure that copyright law will be used for the encouragement of learning and not for suppressing it.

Copthorne Holdings and the Future of the GAAR: January 6, 2012

Benjamin Alarie
Wednesday, December 21, 2011

On December 16, 2011, the Supreme Court of Canada released its much-anticipated decision in Copthorne Holdings Ltd. v. Canada, in which the Court considered the General Anti-Avoidance Rule (GAAR) for the fourth time.

In contrast to its previous GAAR decision in Lipson, the Court arrived at a unanimous decision in Copthorne, applying the GAAR to a number of transactions designed to preserve paid-up capital and redeem shares on a tax-free basis. In order to review the decision and its implications, the University of British Columbia’s National Centre for Business Law and the University of Toronto Faculty of Law are co-sponsoring a symposium on Copthorne Holdings Ltd. and the Future of the GAAR, which will be held at the University of Toronto Faculty of Law on the afternoon of Friday, January 6, 2012. 

The Canadian Corruption of Foreign Public Officials Act: Mandatory Risk Assessment

Kenneth Jull
Tuesday, December 20, 2011

Kenneth Jull is an adjunct professor at the University of Toronto Faculty of Law, teaching the course "Financial Crimes and Corporate Compliance".

The Canadian Corruption of Foreign Public Officials Act ("CFPOA") has been in force since 1999.  In June of 2011 the CFPOA  streaked across the radar screens of compliance officers when Niko Resources Ltd. ("Niko"), a Canadian energy company, plead guilty and paid a fine of almost $10 million  as a result of bribes paid to a Bangladeshi official.  The bribes included a luxury SUV [Toyota Land Cruiser] and a trip to New York and Calgary. 

The large fine is only half of the story. Niko Canada and its subsidiaries were placed on probation requiring that the companies develop compliance procedures based on risk assessment.   The concepts in the prior sentence bear repeating as they are novel in Canada.  The Order pierces the corporate veil to include subsidiaries, places a corporation on probation (as now authorized by the Criminal Code sentencing provisions dealing with organizations) and requires a system of risk assessment. The following paragraph from the probation Order demonstrates the extent to which risk assessment is now a mandatory element of compliance in the anti-corruption arena:

Supreme Court Appointments and Wrong Priorities

Jacob Ziegel
Tuesday, December 20, 2011

This commentary by Prof. emeritus Jacob Ziegel was first published in The Hill Times on Dec. 12, 2011.

On Nov. 14, former chief justice Roy McMurtry of Ontario and several current members of the Ontario Court of Appeal attended the swearing-in at the Supreme Court of Canada of the two new appointees to the court, Justices Michael Moldaver and Andromache Karakatsanis, both from Ontario. While they were in Ottawa, a reporter for The Lawyers Weekly asked McMurtry and the Appeal Court judges for their reactions to the questioning of these candidates by the House of Commons Ad Hoc Committee before their appointments were confirmed by the Prime Minister.

McMurtry said he thought the questioning of Justice Moldaver was too aggressive and he expressed concern that Canada was gravitating to the type of hostile questioning of candidates for appointment to the U.S. Supreme Court by members of the U.S. Senate Judiciary Committee. McMurtry was apparently referring to NDP MP Joe Comartin’s criticism of Justice Moldaver’s lack of bilingualism and his skepticism that the justice would ever become adequately bilingual despite his assurances to the committee that he would give this objective a top priority.

Fair Dealing, Copyright, and the Haggadah

Ariel Katz
Monday, December 12, 2011

This post is cross posted on Prof. Katz's blog. 

The Supreme Court of Canada heard five copyright cases over dense two-day hearings on Dec. 6-7.  One of the cases involved the application of the concept of fair dealing with copyrighted works in education.  At the heart of this appeal was a key distinction made by Copyright Board between copies of works made by students or at their initiative, which could be fair dealing, and copies made by a teacher for students with instructions to read them, which could not.  The distinction is summarized in para. 118 of the Board’s decision:

a copy made by a teacher with instructions to read the material, whether or not it was made at a student’s request, and a copy made for a group of students are simply not fair dealing.  Their main purpose is instruction or non-private study.

Stop Hiding Behind the Phone Book, Mr. Toews

Lisa Austin
Thursday, December 8, 2011

This commentary was first published in The Globe and Mail  on Dec. 6, 2011.

Canada’s federal Privacy Commissioner, along with her provincial and territorial counterparts, has serious concerns regarding the federal government’s proposed lawful access legislation. These include the fact that the government has provided no evidence for the necessity of this expansion of state surveillance powers or why it requires departures from the standards of judicial oversight we usually apply when the police want access to private information. Public Safety Minister Vic Toews has responded by throwing the phone book at them, including in a recent letter to The Globe.

Abdullah Khadr and the Consequences of Detainee Abuse

Kent Roach
Monday, December 5, 2011

This commentary by Prof. Kent Roach is cross-posted from the JURIST website.

According to the Canadian courts, what happens in Pakistan does not stay in Pakistan. The Supreme Court of Canada recently refused to review a permanent stay of extradition proceedings against Abdullah Khadr. Lower courts had previously ruled that "gross misconduct" by the US in arranging and prolonging Khadr's detention in Pakistan justified the extraordinary remedy of a stay of proceedings. The Supreme Court's refusal to consider this case means that Khadr will not be extradited to the US, where he has been indicted on charges of material support of terrorism for allegedly supplying arms and explosives to be used against US forces in Afghanistan. It is possible, but not probable, that Canadian authorities will prosecute Khadr, who was released in August 2010 after four-and-a-half years of pre-extradition custody and has still not been charged in Canada.

Unacceptable Delays in Supreme Court Appointments

Jacob Ziegel
Tuesday, September 27, 2011

This commentary was first published in The Lawyers Weekly on Sept. 23, 2011.

It is now four months since Justices Ian Binnie and Louise Charron announced their intention to retire from the Supreme Court of Canada at the end of July. Nevertheless, and disturbingly so, their successors have still not been appointed and the court remains two short of its full complement of nine judges.

When addressing the annual meeting of the Canadian Bar Association in Halifax last month Chief Justice Beverley McLachlin urged the federal government to ensure that the new justices would be appointed in sufficient time for them to take their places on the court when the court begins its 2011-12 term hearing of appeals in early October.

Her wish is unlikely to be granted. Rob Nicolson, the minister of justice, only announced on August 5 the procedure the federal government intended to follow in filling the two vacancies. The procedure involves the establishment of a five member selection panel of the House of Commons to review a list of names submitted to them by the minister and the committee's  submission of a short list of six unranked candidates to the prime minister and the minister of justice.

The Surprise Factor of Palestinian Sovereignty

Ed Morgan
Wednesday, September 21, 2011

This commentary was first published in the Globe and Mail on Sept. 21, 2011.

Palestinian Authority president Mahmoud Abbas is asking the United Nations to declare his country a state. If it comes, UN recognition will do little to improve lives on the ground. It won’t end the conflict with Israel any more than all the other UN pronouncements have done, and it won’t bring good governance to those who live under the Palestinian Authority. As events in Tunisia, Egypt, Libya and Syria have demonstrated, sovereign statehood is no guarantee of that.

If a statehood declaration is likely to have little impact beyond giving Mr. Abbas a rhetorical victory, why are the Palestinians and their supporters (the Arab League states, Turkey, Iran) making such a point of endorsing it, and why are the Israelis and their supporters (the U.S., Canada, Germany) opposing it so vigorously?

Well, there’s no telling which direction the political spin will take. The Palestinians calculate that Israel will feel increased heat if they’re successful, while the Israelis assume that Palestinian militancy will be harder to chill if their opposition to the move fails. But, in Middle East politics, predictions are dire and reversals the norm.

Who Decides on Land Use in Port Lands and Mississauga?

Ed Morgan
Tuesday, September 20, 2011

This commentary was first published in thestar.com on Sept. 18, 2011.

Toronto’s city council is about to weigh in on Mayor Rob Ford’s intervention into the Port Lands development, and the Mississauga inquiry is about to report on Mayor Hazel McCallion’s intervention in the city centre development. Already one can see a shared question mark linking the two GTA controversies: when it comes to a city’s prominent lands, what checks and balances does the rule of law impose on mayoral power?

To be sure, there are important political and legal differences between the two episodes. The Mississauga proceedings are focused on allegations of conflict of interest and the relationship between the mayor’s office and plans endorsed by her developer son. The Toronto debate is focused on contentions about circumvention of the consultation/approval process and the relationship between the mayor’s office and plans endorsed by his councillor brother.

But while the differences are clear on the surface of the two controversies, similar policy issues lurk just underneath.

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