Does Being Interested In Whether AI Can Be An Author Make For An “Interested Person”?

The Thinker: Rodin 1904

CIPPIC has filed an interesting and apparently unprecedented Federal Court application claiming standing as an “interested person” with respect to a Canadian copyright registration for a work entitled SURYAST in which an AI program is named as a co-author. CIPPIC says on its website:

“CIPPIC is asking the Federal Court to expunge or rectify a copyright registration that holds out an artificial intelligence (“AI”) program as an author under Canadian copyright law.

At the heart of this dispute is SURYAST, an AI-generated output, that raises fundamental questions about authorship, originality, and AI’s place in creative endeavors. Ankit Sahni, an intellectual property lawyer from New Delhi, obtained a copyright registration for SURYAST, listing himself and the AI system as co-authors. The SURYAST output is an adaptation of a sunset photograph, taken by Mr. Sahni, but distorted by the AI according to the style of Vincent van Gogh’s “The Starry Night.””

Here’s the work in question entitled “SURYAST”:

(SURYAST (Hindi word for sunset); generated with the assistance of RAGHAV) From the CIPPIC website.)

Here’s the CIPO (“Canadian Intellectual Property Office”) copyright registration, which lists the “authors” as “RAGHAV Artificial Intelligence Painting App” and Ankit Sahni. Mr. Sahni is listed as the owner. The “authors” and owner are all at the same address in India.

CIPPIC says in its application memorandum that:

[3] The Respondent created a “legal test case” by exploiting the automated registration system of the Canadian Intellectual Property Office (CIPO) to obtain a copyright registration for the SURYAST output. CIPO duly issued the registration without examination, identifying the Respondent and his AI application as co-authors. That registration is now cited internationally as evidence that Canada recognizes AI authorship, creating a misleading precedent that harms the integrity of the public register and muddies the copyright status of AI outputs in Canada.

For his part, the Respondent Ankit Sahni says in his application memorandum:

7. The Respondent accepts the description of the background facts as set out by the Applicant.

CIPPIC says in a letter in its record from David Fewer, its  Director and General Counsel, to the CEO of CIPO, citing an article from an Indian law firm, about the Canadian registration:

The registration as it stands is improper and raises significant concerns about the overall accuracy of the Register of Copyrights. It also sets a problematic precedent for Canadian copyright law. It opens the door for other registrations with AI “authors” that is contrary to the guiding principles of Canadian copyright law and undermines the entire legislative scheme. Canada is being pointed to internationally as a jurisdiction that “recognized Sahni’s co-authorship with the AI tool”.

This is, with respect, neither factually nor legally accurate. No Canadian legal precedent has been set. Copyright registration in Canada involves no examination and no “deposit” of the work in question. If I want to register my supposed copyright interest in a roll of toilet paper with Donald Trump’s picture and name on it that I created with AI and call it “Tribute to Trump”, I can do so online and waste $63. I can list myself as author. The CIPO computer will happily process my payment and not ask any questions. CIPO will not look at the “work” and will not even allow me to submit it. “Certificates of registration may not be strong evidence of the subsistence of copyright or its ownership, but that is a question of weight.” See Patterned Concrete Mississauga Inc. v. Bomanite Toronto Ltd., 2021 FC 314 (CanLII), <https://canlii.ca/t/jf8r0> para. 13. So, it’s not hard to flush that evidence away with stronger evidence.

Tribute to Trump © Howard Knopf 2026 🤣

This shows what information the Canadian Government requires for registration of copyright in Canada. It says:

Do not send a copy of your work along with the application. The Copyright Office does not review or assess works in any way, nor does the Office check to see whether the title of your work has already been used. Many works may appear with the same title, but if each work has been created independently, each will have its own copyright protection. (highlight added)

As CIPPIC points out, copyright registration in Canada is provided “automatically”. According to CIPPIC:

“[13] The Respondent characterizes his copyright registration efforts for the SURYAST output as “legal test cases.” On his public LinkedIn profile, the Respondent states he has been “working on several legal test cases, including being the first person to have an AI system recognized as a co-author of a copyrighted work in India and Canada.” [FN omitted]

[14] The Respondent sought copyright registration for the SURYAST output in Canada, the United States, and India. India’s Copyright Office initially registered the work and recognized RAGHAV AI as a co-author, but later issued a withdrawal notice. However, the registration remains publicly listed. The United States Copyright Review Board rejected the application, holding that the SURYAST output lacked sufficient originality and that an AI system cannot be an author. [FN omitted]

The American copyright registration system is totally different than the Canadian system. It does involve examination and deposit. To compare it to that of Canada is like comparing Notre Dame cathedral to the tool shed in my backyard. The Canadian system is, frankly, an embarrassment and serves no function sufficient to justify its continued existence. It could have been used, by requiring registration and a non-trivial fee for the extra 20 years, to mitigate the unfortunate Canadian decision to extend the copyright term to life + 70 years – but the Trudeau government unfortunately failed to do this.

The US Copyright Office also plays an important and normally well-informed role in domestic and international policy – even if this sometimes sparks controversy. BTW, here’s the latest report from Shira Perlmuter, the US Register of Copyrights and Director of the U.S. Copyright Office – who is so far successfully resisting the efforts of Trump to fire her. The US Copyright Office has taken the position that AI cannot be an “author”. “Because an AI system is not a human being, it cannot be considered an “author” in collaboration with a user.”  See also this commentary.  

CIPPIC  has filed a very lengthy 349 page record in this case  complete with “expert” evidence. The Respondent, Ankit Sahni, “accepts the description of the background facts as set out by the Applicant.” Here is Mr. Sahni’s record.  The sometimes influential Canadian Music Publishers Association (“CMPA”) has filed a 74 page motion to intervene and apparently supports CIPPIC’s position that an author must be human.

Neither Mr. Sahni nor CMPA seem to have any problem with the nature of this proceeding or the standing of CIPPIC as an “interested person” to initiate it. Indeed, CMPA supports CIPPIC’s contention that it is an “interested person”, which should be the existential threshold issue in this proceeding, as I discuss below.

Frankly, one cannot help but wonder how this case arose or to what extent it is actually adversarial in nature. If Mr. Sahni loses, he will have something more to write about in his apparent quest to publicize his test of various registration regimes. In the unlikely event that anyone could ever be bothered to infringe SURYAST and Mr. Sahni decides to sue in Canada,  he could still conceivably try to do so successfully as an author/owner who used AI as a tool. If CIPPIC somehow “wins” in this application, in spite of the “standing” issue discussed below,  this registration might possibly be struck – but the ruling could and perhaps should be quite narrow and procedural and provide no useful precedential guidance.

If and when Mr. Sahni sues someone in a Canadian court for infringing SURYAST, then CIPPIC could then apply to intervene, as it has done in many other cases.

“Interested Person”

CIPPIC may risk the displeasure of the Federal Court by claiming to be an “interested person” in this case. The only possible basis for CIPPIC’s application is that it is “interested person” within the meaning of s. 57(4) of the Copyright Act. Frankly, its arguments are unconvincing. If CIPPIC is an “interested person” in this instance, so too are countless Canadians and others who may, though lacking CIPPIC’s experience, have well informed views about AI and copyright law. Being an “interested person” is not the same thing as being an intervener, a role in which CIPPIC is indeed experienced – and which requires leave of the Court in any given case. Being an “interested person” is not the same thing as finding an issue to be interesting, however interesting and even important it might be.

S. 57(4) of the Copyright Act states that:

57(4) The Federal Court may, on application of the Registrar of Copyrights or of any interested person, order the rectification of the Register of Copyrights by

(a) the making of any entry wrongly omitted to be made in the Register,

(b) the expunging of any entry wrongly made in or remaining on the Register, or

(c) the correction of any error or defect in the Register,

and any rectification of the Register under this subsection shall be retroactive from such date as the Court may order.

(highlight and emphasis added)

It would seem quite questionable that CIPPIC is an “interested person”.  The case law under s. 57(4) suggests that an “interested person" must be an author, owner, someone disputing or updating ownership, plaintiff, defendant, assignee, licensee, or someone claiming to be any of the foregoing, etc. This case law is not to be found in CIPPIC’s Memorandum. Mere curiosity or intellectual interest is arguably far from sufficient. That kind of interest is best pursued in academic journals, blogs, or lobbying corridors. There is an old proverb about how  “curiosity killed the cat”.

It would seem that CIPPIC, Mr. Sahni, and now the CMPA are all eager to bring a potentially very complicated test case to the Federal Court – even though there is no “live  dispute” between the parties involving a potential finding of liability, or any basic factual dispute. It is interesting that the records do not indicate that there was any cross-examination on the various affidavits.

Let me be blunt. IMHO, This is not an appropriate case to take to the Federal Court. The Court may not be willing to spend a lot of time and resources in these circumstances, even if the parties and intervener(s) are willing to expend their resources in this way. CIPPIC  is not defending anyone who has been sued. The Supreme Court of Canada has made it crystal clear that courts should not be granting declaratory judgments or advisory opinions in copyright cases where there is no actual “live dispute”: 

But the usefulness of guidelines in theory does not provide the Court with a sound basis for entertaining declaratory relief without a live dispute between the parties or when those whose rights are at stake are not privy to the proceedings.

(highlight and emphasis added)

See  York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), [2021] 2 SCR 734, para. 86.  Certainly, the long running confrontation between Access Copyright and York University that led to this landmark decision began as a very real “dispute” with countless millions of dollars actually at stake for York and other educational institutions in stark comparison to the theoretical debate between CIPPIC and Mr. Sahni. But since the tariff in question was ultimately held to be “not mandatory”, there was no longer any actual “live dispute" between the parties. Accordingly, and thankfully, the Court declined to rule on the very problematic guidelines upon which York tried to rely. BTW, I’m very proud that my arguments on behalf of CARL and Prof. Ariel Katz’s arguments were instrumental in carrying the day on the “mandatory” issue when the case got to the SCC.

The issue of whether a public interest entity has standing to ask the courts to rule in the absence of an actual live dispute or as other than a directly affected person in an actual case has been and continues to be important, and probably always will be. CIPPIC’s relies on Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 (CanLII), [2012] 2 SCR 524, <https://canlii.ca/t/fss7s>. However, CIPPIC can hardly compare its interest here to that of the organization representing the sex workers whose safety and business interests were obviously at stake in that litigation but who were unwilling themselves to bring a challenge forward in their own names.  See also Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342.

CIPPIC boldly submits it has that it has standing as an “interested person”:

[39] No private party is directly interested in challenging the SURYAST output registration. The work does not infringe the rights of any identifiable person or entity. There is no private squabble over copyright ownership. This is not a defect in CIPPIC’s application, but a reason why CIPPIC merits public interest standing. The Respondent’s registration raises a systemic question about the validity of non-human authorship under Canadian law and the subsistence of copyright in AI generated outputs. These questions will go unaddressed unless this Court allows a party like CIPPIC to bring them forward.

CIPPIC’s reliance on Rizzo & Rizzo Shoes Ltd (Re),  [1998] 1 SCR 27, <https://canlii.ca/t/1fqwt> (SCC) to expand the meaning of “interested person” is anything but persuasive. That case is too frequently cited as a last resort when no better argument or authority regarding statutory interpretation is available.

There’s lots of other case law about public interest standing – and it’s a very live issue even as we speak in the SCC, i.e. the recently heard Democracy Watch v. AGC case in which judgment is pending.  It’s obvious that the courts can and must exercise some serious triage on when and how non-parties can initiate litigation. Canadian courts are notoriously backlogged with urgent real litigation while resources, especially judicial resources, are and are likely to remain limited and even inadequate overall.

BTW, I’m not the only one to raise the issue of whether CIPPIC has “standing” here. See this comment from the prominent firm of Lenczner Slaght.

Other Issues

CIPPIC is seeking:

an Order:

i. pursuant to paragraph 57(4)(b) of the Copyright Act, to rectify the Register of Copyrights by expunging the Registration dated December 1, 2021, in connection with the SURYAST output (Canadian Copyright Registration Number 1188619); or

ii. in the alternative, pursuant to paragraph 57(4)(c) of the Copyright Act, to rectify the Register of Copyrights by removing “RAGHAV Artificial Intelligence Painting App” from the SURYAST Registration as a co-author;

(highlight added)

For his part, Mr. Sahni, through his counsel from a very reputable IP firm, makes some frankly bizarre assertions such as:

25. While the Court may opt to exercise its discretion, the Registrar is entitled to an appropriate degree of deference. (FN omitted)

26. The Registrar has determined that rigorous examination of applications for registration is unnecessary. Unlike other intellectual property such as patents and trademarks, copyright law is sui generis.

(highlight added)

There no longer appears to even be an actual “Registrar of Copyrights”, although I recall that there once was such a person. The term still does appear in the Copyright Act. In any case, the “Registrar” (or whoever or whatever) is not entitled to any deference because nothing was done or decided whatsoever other than that the CIPO computer automatically accepted Mr. Sahni’s $63 and automatically issue a certificate in accordance with  an essentially useless registration regime that is predicated upon NO examination and NO deposit.

Mr. Sahni’s counsel states:

28. The simple purpose of copyright registration is to provide official proof of ownership for creative works. Indeed, in Canada, copyright registration automatically exists upon creation. Registration simply provides a legal certificate to be held by the owner to protect against infringer.

(highlight added)

The $63 certificate provides nothing more than minimal and evidence pursuant to s. 53 of the Copyright Act that can easily be challenged and overcome in litigation, depending on the facts. That is hardly “official proof of  ownership”. It is simply incorrect to state that “copyright registration automatically exists upon creation.” Obviously, registration does not happen “automatically”.  Someone must create an account with CIPO, provide minimal information, and – above all – pay $63 (or $81 if done in writing).

Sahni’s memorandum does contain some interesting observations about modern art created by throwing paint on a canvas, etc. This is NOT the kind of thing that should take the Court’s time in this way.

AI does not create works all by itself, although that may soon happen or even be happening. That is not alleged in this case. Mr. Sahni had to prompt the machine, even if only with some minimal parameters. The Supreme Court of Canada has made it quite clear that “skill and judgment” are required for the subsistence of copyright in Canada. It may well be that AI can be used by human authors to assist in the production of works protected by copyright. Various “machines” and technology have been used since the advent of Gutenberg’s printing press in 1440 and particularly in the last two centuries to enable the production and reproduction of copyrighted works ranging from books to photographs to films to musical compositions to performances. AI is obviously a new and very promising and potent tool.

If and when Mr. Sahni should ever sue someone in Canada for infringing SURYAST, maybe we will find out whether the work actually qualifies for copyright and whether even he qualifies as the author.  He won’t need to join the AI program as a co-author - unless he wants to generate more publicity and potentially unnecessarily spend a lot of his and others’, including the Court’s, time.

Is the Issue Really So Clear?

The ultimate issue that CIPPIC has exposed is whether AI can be an “author” for copyright purposes. One is tempted to categorically deny such a possibility and to look somehow for legal confirmation. However, remember the old “infinite monkey theorem” which “states that a monkey hitting keys independently and at random on a typewriter keyboard for an infinite amount of time will almost surely type any given text, including the complete works of William Shakespeare”.

Maybe the issue isn’t as simple and obvious as it seems. Given the appalling and often minimalist state of much of today’s visual and musical production, for example, I have no doubt that AI programs, left to their own machinations, can produce much better stuff than we often see in museums or hear on Spotify. What if AI is able to generate, without much or even any further human involvement, more Mona Lisa style paintings, more Shakespeare style plays, and more Mozart style symphonies – all of which might well be quite new and different than anything before, technically and qualitatively excellent, and very “creative”? 

Perhaps the issue involves not only whether AI can be a an “author” in the co-author sense, as in this application, but an author all by itself without any specific human prompting or further involvement. What do “author” and “creative” really mean anymore?

Is it maybe even timely and necessary to revisit the meaning of “original” in copyright law? Can something be “original” and maybe even magnificently so without human authorship? Canada’s iconic CCH v. LSUC decision defined “original” as follows:

25 For these reasons, I conclude that an “original” work under the Copyright Act is one that originates from an author and is not copied from another work.  That alone, however, is not sufficient to find that something is original.  In addition, an original work must be the product of an author’s exercise of skill and judgment.  The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. While creative works will by definition be “original” and covered by copyright, creativity is not required to make a work “original”.

See “The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest” Carys J. Craig, 2005. Perhaps “the times, they are a-changin”…? 

This is fascinating  and interesting stuff – but I’m skeptical that it should be justiciable as framed in this application which is focussed on one isolated registration in Canada’s problematic copyright registry involving a work that is not the subject of any “live dispute”. If this case somehow goes forward, it may and perhaps should be more about standing and procedure than about the potentially very complex issues of authorship, originality, creativity, etc.

Conclusion

CIPPIC has done some very good work over the years. Indeed, I was proud to have been CIPPIC’s pro bono external lead counsel on its first and possibly most important court case where we successfully and influentially intervened to protect people’s privacy rights in the face of mass music industry piracy litigation. See: BMG Canada Inc. v. John Doe (F.C.A.), 2005 FCA 193 (CanLII), [2005] 4 FCR 81, <https://canlii.ca/t/1kx1k>.  CIPPIC has also intervened successfully in other important cases, e.g. involving default judgments in more recent mass piracy litigation, reverse class actions, and lately preserving fair dealing rights in the face of a dubious TPM circumvention allegation (appeal pending).

This is, frankly IMHO, a needlessly risky initiative for CIPPIC in the sometimes rather harsh real world of the Canadian Federal Court. It is clear that much of the work was done by students. Student involvement in actual litigation is commendable and should be encouraged in the right circumstances. But perhaps this case should have been framed as a law school moot court exercise based upon a hypothetical fact situation – rather than an actual Federal Court application that could consume a lot of precious court time potentially only to be dismissed for lack of standing and/or absence of an actual “live dispute” involving actual parties. That would conceivably be a big disappointment for the students involved.

For whatever reason, this case seems to be going nowhere according to the docket. A Requisition for Hearing was filed on July 28, 2025 but nothing appears to have happened since then. CMPA’s application to intervene has not been decided. Might this be because the Court perhaps has some concerns about this application? If it does somehow proceed, and there is no further intervention to challenge the basis of the proceeding, including CIPPIC’s assertion of standing, it will be interesting to see if a sceptical judge might do so sua sponte at some point.

At the end of  the day, CIPPIC has admittedly identified an interesting issue. But this proceeding is NOT the best, maybe not even a viable way to resolve the issue, and possibly very risky for CIPPIC. It The issue of whether AI can be an “author”, as opposed to being yet another tool used by actual human authors, may get resolved one day in Canada through actual adversarial copyright infringement litigation. If the issue is sufficiently serious and urgent, which is currently far from clear, then the Government could legislate. As for registration of a non-human as an “author”, the Government could presumably deal with this issue by regulation. If and when the Government chooses to engage in significant broad revision of the Copyright Act, or even in updating regulations under that legislation, this is an issue that might well be addressed at that time.

And finally, for those interested in this issue in whatever way, stay tuned for what is happening in the USA where the Thaler case may be heard in the US Supreme Court if certiorari is granted.  Here’s the US Government’s recent brief on “Whether the court of appeals correctly upheld the Copyright Office’s refusal to register a claim to copyright in an image for which no human author had been identified.” Here’s the docket in the Thaler case to date. Here’s the decision from the DC Court of Appeals.

BTW, the University of Ottawa Faculty of Law is once again looking for a new Director of CIPPIC.

HPK

(highlight and emphasis added)

(as usual, not legal advice)

The Proposed Artist’s Resale Right – A Bad Solution in Search of a Problem?

 

(Un-credited soapstone sculpture for sale by Canada House Gallery)

The recent federal government budget proposed an artist’s resale right (“ARR”) in its 2024 Budget. The details are unknown, and there was no mention of it in the budget implementation legislation Bill C-15 tabled on November 4, 2025.

The good news about this proposal is that it is, so far, the ONLY visible copyright arrow in this government’s current quiver. For the time being, we have been spared any disastrous proposals to cut back on fair dealing, to make Copyright Board tariffs mandatory, or other potentially dangerous proposals – despite the best efforts of the usual lobbyists and collective madness.

Here’s what Budget 2025 had to say:

Protecting Artists’ and Creators’ Copyrights

Artists, particularly visual artists, are great contributors to Canada’s cultural scene and among the lowest income earners in Canada despite their significant cultural contributions. An Artist’s Resale Right provides the creators of original visual artwork with a royalty whenever their work is resold through an eligible sale, providing an additional income stream.

In Budget 2025, the government announces its intent to amend the Copyright Act to create an Artist’s Resale Right in Canada, ensuring Canadian visual artists benefit from future sales of their work.

…

Protecting Artists’ and Creators’ Copyrights

Amendments to the Copyright Act to establish an artist's resale right in Canada.

This measure is expected to benefit visual artists in Canada, particularly Indigenous visual artists, who make up a higher proportion of visual artists (4.1 per cent) relative to other artforms (3.1 per cent). In 2015 visual artists had a median income of $20,000 compared to $41,000 for cultural workers and $43,500 for all workers.

(highlight added)

BTW, these numbers are potentially very misleading. Who and what is an “artist”? Who and what is a “cultural worker”? Does this include amateurs who cannot even give their stuff away at flea markets? We have similar reliability problems for the “starving artist myth” as applied to writers and musicians. There are no accreditation standards for these professions. In many cases, the “starving artist” may be “starving” because, for whatever reason, nobody wants to pay them. There is no guaranteed annual income for every self-proclaimed artist, writer, musician, actor etc. in Canada – or anywhere for that matter. As a former professional musician and as a writer in the eyes of Access Copyright, I ought to know.

But does the ARR make any sense on its own? The answer would seem to be clearly negative. As suggested by others over the years, it would likely:

•  Be unconstitutional since it deals with resale rights in tangible objects, such as paintings and sculptures. It has nothing to do with production, reproduction, or performance which have been the essence of “copyright” as we know it. This new scheme will arguably be about personal property and civil rights, which is provincial jurisdiction in Canada. See this by Ariel Katz and Guy Rub and this essay by Guy Rub. See also Michael Geist’s Podcast #253 featuring Guy Rub.
•  Benefit only older, successful, and/or mainly dead artists (i.e. their estates)
•  Benefit unproductive collectives
•  Throw a potential lifeline to the Copyright Board, the need for which (at least in its current bloated form) is becoming increasingly questionable as it devolves more quickly and clearly into a rubber stamp with very rare engagement on any “inaugural” or complicated new matters
•  Pander to unrealistic expectations of Indigenous artists created by opportunistic lobbyists and politicians
•  Significantly impair the art auction and even the routine commercial art gallery market in Canada
•  Drive art resale underground and/or to the USA, where an ARR does not exist and is extremely unlikely in the foreseeable future
•  Potentially collide with and/or complicate the already problematic regime under the Cultural Property Export and Import Act, RSC 1985, c C-51,
•  Do nothing to solve the problem that darkens the Canadian art market of fake and counterfeit Indigenous art. In fact, it may worsen the problem by driving more sales underground or out of sight, for example into flea markets and other countries.

Above all, any new “right” that unnecessarily adds friction, intermediaries, and regulation is likely to be economically inefficient and drain money from those that most deserve it. It will effectively be a particularly inefficient “tax” on art – which will mostly if not totally benefit meddlesome middlemen and collectives and lessen the returns to galleries and, above all, artists themselves. Excessive copyright rights have long been seen as a “tax”, e.g. by Lord Macauly in 1841.

In other words, it could be an unnecessary and unworkable solution in search of a non-existent problem. It would, of course, benefit CARFAC, the organization that is aggressively endorsing it and the collective it is touting to administer it.  There has been lobbying by Canadian Artists’ Representation / Le Front des artistes canadiens, which receives substantial government funding. 

CARFAC us proposing that:

·       that it applies to secondary sales of original artworks for the lifetime of the artist, and their  estates covered under the term of copyright;

·       that the rate paid to rightsholders is 5%;

·       that it applies to works sold in the secondary market for at least $1,000;

·       that the art market agent and seller of the artwork are jointly responsible for the payment of the royalty; and

·       that royalties be managed and paid through the copyright management organization, CARCC, currently operating under the business name of Copyright Visual Arts – Droits d’auteur Arts visuels.

If there is concern in the Indigenous community about exploitation of working artists, there should be further consideration and exploitation of the certification mark regime that has long been in existence under the Canadian Trademarks Act. A certification mark is like  a “seal of approval” that the goods and services covered meet a defined standard of quality and authenticity. This would help to ensure that that the sculptures, paintings, or whatever actually come from the identified community and are not factory produced fakes from elsewhere.

The use of “official” marks under the Trademarks Act  may be possible where the test to evaluate public authority status can be met, i.e.:

The two-part test is made up of the following elements:

·        a significant degree of control must be exercised by the appropriate government over the activities of the body; and

·        the activities of the body must benefit the public.

Political Implications

The Liberals will either have a minority government or a bare majority until the next election. The urgency of other issues, not least of which is CUSMA which will likely implicate intellectual property and copyright, may keep the ARR from urgently being top of mind for Mark Carney and the new Heritage Minister, Marc Miller (who is an Anglophone from Quebec with impressively promising credentials). Without a majority, things can get stuck very easily in  Committee hearings. Whatever can be said about the Conservatives, if  they somehow regain a majority or assert themselves in committee, they have sometimes shown more wisdom than the Liberals when it comes to copyright legislation and are less likely to pander to the culture sirens from Quebec and the Toronto collectives.

HPK

To “Actualize” Users’ Fair Dealing Rights: Guidelines If Necessary But Not Necessarily Guidelines

 I recently spoke to the very worthy ABC Copyright group, which has been holding conferences since 2003, to which I’ve often contributed. My topic this year was:

To “Actualize” Users’ Fair Dealing Rights:

Guidelines If Necessary But Not Necessarily Guidelines

This and several other presentations, including a keynote from Sara Bannerman, are available at the conference archive here:

https://dalspace.library.dal.ca/collections/241d04d2-aa6d-4618-86cc-df08b1221741

We did have a brief appearance at the conference from Universities Canada, from which we have long been waiting for an updated version of its outdated and problematic fair dealing guidelines and documents. I shall let you know if and when we see some white smoke from that source.

The notion of actualizing user’s fair dealing rights flows from Justice Abella’s landmark Supreme Court of Canada ruling in the York University case from nearly four years ago, in which I was honoured to act for the intervener CARL with what turned out to be a very influential intervention. Here’s the decision:

York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), [2021] 2 SCR 734, <https://canlii.ca/t/jh8bc>

Here’s the webcast: https://www.scc-csc.ca/cases-dossiers/search-recherche/39222/

Here was Justice Abella’s closing comment from the decision:

[106]  At the end of the day, the question in a case involving a university’s fair dealing practices is whether those practices actualize the students’ right to receive course material for educational purposes in a fair manner, consistent with the underlying balance between users’ rights and creators’ rights in the Act. Since we are not deciding the merits of the fair dealing appeal brought by York, there is no reason to answer the question in this case.

(highlight & emphasis added)

HPK

A Fair Deal for Canada on Fair Dealing

Kate Taylor - Globe and Mail

The recent sadly and badly misinformed “opinion” dated May 20, 2023 by veteran Globe and Mail cultural columnist Kate Taylor entitled “Copyright loophole for education should be plugged”  highlights the need for the educational sector to step up to the plate on fair dealing and copyright revision. Her “opinion”, which some might mistake for journalism given her 34 year tenure with the Globe and Mail (which regards itself as “Canada’s National Newspaper”), could have been written by lobbyists for Access Copyright and publisher interests, though it would lack her hallmark and that of the Globe and Mail.

This is not the first time she has blatantly opined for Access Copyright. Here she is in 2016 using her Globe and Mail podium, which does not even pretend to be an “opinion” piece as does the current effort.

• She doesn’t seem to understand that fair dealing rights are “users’ rights” that must be given a “large and liberal interpretation” and are “always available.” She needn’t take my word for this. Those statements come from the Chief Justice of Canada, Beverly McLachlin in the landmark 2004 CCH v. LSUC decision. Above all, fair dealing is not a “loophole”. Fair dealing rights are absolutely essential and integral to the concept of copyright in Canada and every other comparable jurisdiction.
• She doesn’t seem to know the difference in terminology between “fair dealing” (Canada) and “fair use” (USA).
• She is apparently unaware that the USA has provided more and more explicit rights to educators since 1976 than Canada has ever done, i.e. by hard wiring teaching (including multiple copies for classroom use), scholarship, or research” into its copyright law since 1976. See 17 USC 107. Nobody could credibly suggest that this is non-compliant with international treaties. It’s simply absurd to suggest that Canada is an “outlier” in this respect; if anything, our fair dealing users’ rights need to go even farther to catch up with the USA.
• She is apparently unaware that key Canadian SCC fair dealing decisions, including the landmark 2012 Alberta v. Access Copyright and the SOCAN v. Bell  iTunes preview cases, were decided on the pre-2012 law that goes back to 1921 before the word “education” was added to s. 29. 
• She is misleading readers by suggesting that the addition of the word “education” to s. 29 of the Copyright Act via the 2012 Copyright Modernization Act caused the decline in Access Copyright’s revenues. Indeed, the 2019 INDU Committee Report from Parliament confirms that:
• ... in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),5 the SCC concluded that teachers could rely on the fair dealing exception when reproducing works for their students since these students were engaging in “private study.” The SCC reached this conclusion without relying on an explicit fair dealing exception for “education”—which, as noted above, has since been added to the Act.
• See also:

Prof. Ariel Katz’s 2018 testimony at the INDU hearings explaining that  correlation does not imply causation and outlining the many of the actual reasons for Access Copyright’s declining revenues
Prof. Ariel Katz’s 2014 blog about The Loss of Access Copyright Royalties and the Effect on Publishers: Sifting Fact from Fiction, which debunks the myths about the Oxford University Press “OUP”)decision close its Canadian K-12 division. Ms. Taylor in her current opinion to continues to attempt to refloat the OUP fiction

There have been no court cases since 2012 that have specifically considered the effect, if any, of the 2012 addition of the word “education” with respect to the fair dealing rights of educators, librarians, students and other essential “users” of the copyright system. In any event, the effect of the dealing on the market for the work being copied is one of the factors that courts would consider in determining fairness or lack thereof and, if Ms. Taylor is somehow correct in her assertion of causal connection, then copyright owners are already protected – so there’s another reason why there’s no loophole that needs to be fixed.

She is apparently unaware of the greatly increased spending since 2012 that bypasses Access Copyright not just because tariffs aren’t mandatory (as Ariel Katz and I have been preaching for a decade or so and the SCC agreed in 2021) but because Access Copyright’s “tariff” offers such poor value. Its repertoire is very limited – especially in the post-secondary educational (“PSE”) sector – and its terms of use are too limited to justify any more than a small fraction of their “approved” tariff, which is:

• $24.80 per FTE student, if the educational institution is a university.
• $9.54 per FTE student, if another educational institution (i.e. college)

The PSE sector is spending more money than ever though acquisitions, direct licensing, and dealing with the much more responsible and responsive American Copyright Clearance Center for transactional licences. Access Copyright is notoriously inefficient in its distribution, offers very limited “rights”, and its repertoire is focussed on Canadian literature – which is not a major component in the PSE sector. Most Canadian university or college grads will never need to read Margaret Atwood or Alice Munro. Maybe they should for their literary betterment. But such material is not part of the curriculum for engineers, doctors, lawyers, computer programmers, and the overwhelming majority of PSE students.

Access Copyright persists in attempting to collect revenues based upon repertoire for which it has NO rights. It once was able to get educational institutions to hold their noses on its dubious and now defunct “indemnity” scheme, which may have appeared to offer some practical value to some institutions. I’ve written a lot about this in the past, including this from 2009.

I have often suggested that Access Copyright could serve a useful purpose if it offered decent value to license its actual repertoire based upon useful terms and conditions at a reasonable price. But that price would presumably be a fraction – perhaps 10% - of what it currently sees itself entitled.

BTW, Access Copyright’s website is deceptively out of date regarding the PSE tariff case law, where it stops in 2017.

Ms. Taylor concludes her perfect puff piece for Access Copyright by saying “The legalized robbery of Canadian authors by the education sector is an international embarrassment and a national shame.” (emphasis and highlight added) Frankly, the national shame is that Canada’s national newspaper would publish something this misinformed, outrageous, and imbalanced that might get mistaken, due to its provenance and the Globe and Mail’s status, for credible journalism or analysis. BTW, I posted several timely tweets about this “opinion” and compiled  them for the comments section for the Globe and Mail, which has apparently decided not to publish my comment  in the “comments” feature following her opinion.

All that said, Ms. Taylor’s analytically and factually challenged “opinion” should at least be useful as a wakeup call for the educational sector – which frankly has not stepped up to the plate with sufficient vigor and confidence since its great victory in the SCC in the 2021 Access Copyright case, for which Ariel Katz laid the legal foundation and influentially intervened and I made the prevailing arguments on behalf of the intervener Canadian Association of Research Libraries (“CARL”).

The good copyright news overall now is that we recently passed Passover this year without the feared fatal budget announcement regarding fair dealing or mandatory tariffs that this Government might have hidden away in Federal Budget. That’s the good news.

The bad news is that this doesn’t mean these dangers have passed, as Ms. Taylor’s opinion piece blatantly demonstrates. Although the Hon. Pablo Rodriguez has his hands full with his incredibly misguided legislation in the form of Bills C-11 (now passed)  and C-18 (the “link tax” bill), that doesn’t mean that he or his enabling officials have forgotten about copyright and the shrill and misinformed voices from Quebec (of which he is Trudeau’s “Lieutenant”) and Bay Street.

Wiser ministers know that copyright revision – other than very careful incremental changes – is not a hill to die on in Canada. Fortunately, there are two other ministers who will hopefully bring some essential legal and policy wisdom to the table, should this become necessary.  The Hon. F-P Champagne, the ISED minister, is actually the minister with historically primary responsibility for copyright. The Minister of Justice – the Hon. David Lametti – who is mentioned by name by Ms. Taylor – may also play a role. He was a leading copyright law professor at the McGill Faculty of Law for about 15 years before he ran for office. His department is responsible for ensuring the constitutionality of any legislation and is responsible for the review and drafting of legislation for the government. He was my client and appeared with me in his capacity as law professor and head of the Centre for Intellectual Property Policy at McGill in another important SCC case that helped to pave the way to the definitive 2021 SCC York ruling that Access Copyright tariffs aren’t mandatory. See Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615.

In the lull before the possible copyright storm, the best thing that the user community can do would be to follow the suggestion of Justice Abella in her last and crowning SCC decision of her illustrious career, namely to “actualize” their fair dealing rights as she puts it in the 2021 Access Copyright v. York University decision from the SCC.

As I’ve said before:

The victories of the PSE (post secondary education) sector are in peril – not only because of AC and its collaborators but because of sometimes unwise strategies in the PSE sector itself. Recall this important analysis by Prof. Ariel Katz following York’s defeat at the trial level in 2017: Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss. The fact that the AC litigation against York was not struck down early on and had to go the SCC and that York chose to bet the farm on a bad set of fair dealing guidelines and risk a severe smack down overall on fair dealing does not bode well for the future unless basic lessons have been learned – which is hopefully happening but is not yet evident. York very nearly lost that litigation. Fortunately, my brave client the Canadian Association of Research Libraries (“CARL”) and Prof. Ariel Katz were very instrumental in saving York from this fate – though it’s far from clear that all those responsible for York’s strategy actually appreciate our work.

It surely suggests that the PSE sector needs to update fair dealing guidelines and to follow Justice Abella’s wise words in the York decision:

[106] At the end of the day, the question in a case involving a university’s fair dealing practices is whether those practices actualize the students’ right to receive course material for educational purposes in a fair manner, consistent with the underlying balance between users’ rights and creators’ rights in the Act. Since we are not deciding the merits of the fair dealing appeal brought by York, there is no reason to answer the question in this case.

(underline highlight & emphasis added)

This can only mean that the PSE sector needs to come up with viable fair dealing guidelines that are:

• Neither too permissive nor too defensive
• Sufficiently specific to be actually useful.
• Sufficiently to broad to enable adult responsibility by individual professors and library personnel without the need to seek legal advice or permission from so-called rights owners or their licensees (after all, that is what fair dealing is all about)
• Likely to stand up to scrutiny in the event of litigation.

As I’ve said before:

Perhaps York should have been rather more careful about what it wished for. Both the Federal Court and the FCA had to respond to the counterclaim, which they did as asked. I am on record from the beginning as having questioned not only the guidelines themselves, which emanate from AUCC (now UC) guidelines but York’s decision to needlessly, in my view, put them on trial. Essentially, I had suggested that York get a summary ruling on whether the tariff was mandatory – which should have been very easy at least after the 2015 SCC judgment – and not unnecessarily “bet the farm” on the controversial fair dealing guidelines. Here are some of my blogs in reverse chronological order.

The process of actualizing educators’ fair dealing rights, which includes updating fair dealing guidelines, is essential and may suffice to head off any improvident legislation, such as Ms. Taylor and her supporters would like to see. It is too important to be entrusted to any single organization. That said, it should not be unduly complicated, given the good beginning of the 2012 U of T guidelines with which I was closely involved. These could be satisfactorily updated relatively quickly by a very small number of experts. If different organizations separately develop new guidelines, then let the market decide which approach is better. This may prove more efficient than attempting to form a coalition that could result in delays and devolution to the lowest common denominator. Above all, the mistakes that almost resulted in defeat being snatched from the jaws of victory in the long saga of the York litigation as a result of problematic guidelines and litigation strategy must not be repeated.

The original 2012 U of T fair dealing guidelines were developed in a cooperative collaboration between usually contrasting viewpoints (Casey Chisick and I) under the wise leadership of the now retired and much missed U of T general counsel Steve Moate. I was pleased to have been part of this process. These were, IMHO, the best fair dealing guidelines to date and suggest a method and process of going forward. If Casey and I can agree on anything concerning copyright, chances are that it must be right!

U of T has recently controversially updated its fair dealing guidelines, supposedly in response to the 2021 York decision from the SCC. Here is the new version. I was NOT involved in this update because I was not invited. I and many others are very disappointed with these new guidelines which are a big step backwards and, in some respects, simply wrong and even harmful. I will not go into any detail now as to how they are less than helpful, other than to say this.

Overall, these revised 2022 (as slightly updated in early 2023) guidelines are a disappointing and, in several instances, questionable and even inaccurate revision and update. They are more restrictive for the PSE sector than the 2012 guidelines.

Overall, the guidelines have gone from a reasonably balanced “safe harbour” approach that  enabled and empowered fair dealing to a much more risk-averse restrictive approach that overly protects publishers and needlessly errs on the side of caution at the cost of good education, research, and private study. With three strong SCC fair dealing victories in the last decades and two recent strong SCC judgements that tariffs aren’t mandatory, why wouldn’t U of T offer more assertive and empowering guidelines for the benefit of teachers and, above all, students – in other words, the university community.

If the current government is unwise enough to follow the histrionic hyperbole of Access Copyright and powerful publishers as presented by Ms. Taylor, then the PSE sector must be ready to defend itself with a good offence. This might include:

• Clarifying that TPMs can be circumvented for fair dealing purposes
• Ensuring that users’ fair dealing rights cannot be overridden by contract or waiver
• Ensuring that if crown copyright is not abolished in its present form, then republication of any crown work that is not officially “secret” should be permitted as fair dealing. This would be almost as good as in the USA where the federal government has no copyright rights in its works
• Adding the two little words “such as” to the s. 29 fair dealing provision, consistent with American law.

Anyway, thank you to @ThatKateTaylor this unintentional call to arms to all those who care about a fair deal for fair dealing and other essential aspects of copyright in Canada.

HPK