“Valedictory” Presentation: My

Four Decades in Canadian

Copyright
ABC COPYRIGHT CONFERENCE
JUNE 16, 2023
HOWARD P. KNOPF M.S., LL.M.
Howard P. Knopf
33 Trimble Cres.
Ottawa, Ontario
K2H 7M9
Cell: 613-286-3279
E-mail: hknopf@gmail.com
NOT LEGAL ADVCE
“VALEDICTORY”
 More meanings of “valedictory”:
valedictory, a. and n. Oxford English Dictionary
 A. adj.
 1. Uttered or bestowed in bidding or on taking farewell; of the nature of a valediction.
 2. Manifested, performed, or done by way of valediction.
 B. n.
 1. U.S. A valedictory oration. (See quot. 1847 and cf. valedictorian.)
1. 2. A statement or speech made by way of valediction on leaving a position, person,
etc.

I’ll use this occasion to reminisce and predict about “nudging the law”…
The VCR Rental Right Issue
 The 1988 Amendments
• First major revision since 1921
• The involvement of the Department of Communications – now Heritage
• The many scholarly studies and papers – we see no more
• The involvement of the lobbyists and the denouement of the
professional public servant’s role
• Computer programs
• Broadening of collective activity beyond performing rights
• Creation of the modern Copyright Board
• The missing educational exceptions
The Henderson Report 1991
The Three Henderson Books – Managing Editor
1993-1994
CIPI – The Canadian Intellectual Property
Institute 1993-1995
• Founding Executive Director,
Canadian Intellectual
Property Institute/Institut
canadien de la propriété
intellectuelle (CIPI/ICPI),
whose mandate comprised
research, education and
publication in the area of
intellectual property law and
policy; 1993-95
PRINCE EDWARD ISLAND v. PRINCE EDWARD
ISLAND
• Prince Edward Island Mutual Insurance v.
Insurance Co. of Prince Edward Island, 1999
CanLII 7462 (FC), <https://canlii.ca/t/48lt>
 SECURITY INTERESTS IN
INTELLECTUAL PROPERTY 2000-2002
 MOUSE IN THE HOUSE
• There is a mouse in the House of Commons hiding in a certain Bill C-36 that is ostensibly about merging
the National Archives with the National Library. Whether or not this merger is a good thing, it maybe
overshadowed by copyright provisions buried inside this bill that would postpone or deny the right of
Canadians to hear their stories for several decades. Copyright term extension, a very unwise American
concept perfected by the Walt Disney Company in the name of Mickey Mouse himself, is coming to
Canada.
• R.B. Bennett (d. 1947), prime minister of Canada during the Depression, who died a viscount in his
bathtub living in splendid upper-class retirement in England.- Sir Robert Borden (d. 1937), prime
minister of Canada from 1911 to1920 through the Great War and opponent of Laurier on reciprocity
with the U.S.A., Canada's perennial issue.- Sir Wilfrid Laurier (1841-1919). Legendary prime minister of
Canada. Any of his unpublished works could now have protection until 2024 if first published before the
end of this year.- Stephen Leacock (d. 1944), Canadian educator, economist biographer and legendary
humorist and chronicler of Canada's earlier soul.- Archibald Stansfeld Belaney, a.k.a. Grey Owl (d.
1938) writer,
• Stealth 14-34 year copyright term extension
• Blocked at the time

• https://www.scribd.com/document/251511919/Knopf-Mouse-in-the-House-National-Post-June-7-2003
 PRIVACY RIGHTS OF INTERNET USERS
BMG Canada Inc. v. John Doe (F.C.), 2004 FC 488 (CanLII), [2004] 3 FCR 241, <
https://canlii.ca/t/1gt6l>

 
BMG Canada Inc. v. John Doe (F.C.A.), 2005 FCA 193 (CanLII), [2005] 4 FCR 81, <
https://canlii.ca/t/1kx1k>

• All about “Geekboy”

• http://www.moffatco.com/pages/publications/BMG%20Case%20-
%20E-Commerce.pdf
MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)

• Co-author of Amicus Brief on behalf of Sharman Networks

• https://www.copyright.gov/docs/mgm/sharman-networks.pdf
 CLEARANCE CULTURE
• THE COPYRIGHT CLEARANCE CULTURE AND CANADIAN
DOCUMENTARIES A WHITE PAPER ON BEHALF OF THE DOCUMENTARY
ORGANISATION OF CANADA (“DOC”)
• 2006
• http://www.moffatco.com/pages/publications/HPK_white_paper.pdf
LEVIES ON MEMORY AND/OR PHONES,
ETC.
• Canadian Private Copying Collective v. Canadian Storage
Media Alliance (F.C.A.), 2004 FCA 424 (CanLII), [2005] 2 FCR
654, https://canlii.ca/t/1jgv9
• Apple Canada Inc. v. Canadian Private Copying Collective,
2008 FCA 9 (CanLII), <https://canlii.ca/t/1vcx1>
 OFFICIAL LANGUAGES
OFFICAL LANAGUES ACT

4 (1) English and French are the official languages of Parliament, and everyone has
the right to use either of those languages in any debates and other proceedings of
Parliament.
(highlight added)
• Knopf v. Canada (House of Commons), 2006 FC 808 (CanLII), <https://canlii.ca/t/1nw4h>
• Knopf v. Canada (Speaker of the House of Commons) (F.C.A.), 2007 FCA 308 (CanLII), [2008] 2 FCR
327, <https://canlii.ca/t/1tj19>,
• Howard P. Knopf v. Speaker of the House of Commons and Attorney General of Canada, 2008
CanLII 12091 (SCC), <https://canlii.ca/t/1w6d9>
•  
 COPYRIGHT AND CHOCOLATE BARS
• Euro-Excellence Inc. v. Kraft
Canada Inc., 2007 SCC 37
(CanLII), [2007] 3 SCR 20, <
https://canlii.ca/t/1s72h>
 RESEARCH AND PRIVATE STUDY
• Alberta (Education) v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 SCC 37 (CanLII), [2012] 2 SCR 345,
https://canlii.ca/t/fs0v5
• Beginning of my collaboration with Prof. Ariel Katz
 CBC v. SODRAC
• Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC
57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0>
• My clients were Prof. Ariel Katz and Prof. David Lametti, as he then
was.
[113] I find that licences fixed by the Board do not have mandatory binding force over a user; the Board has the
statutory authority to fix the terms of licences pursuant to s. 70.2, but a user retains the ability to decide
whether to become a licensee and operate pursuant to that licence, or to decline.
2. During the hearing before this Court, counsel for the interveners the Centre for Intellectual Property
Policy and Ariel Katz briefly raised concerns regarding the Board’s power to issue retroactively binding
decisions in general. That issue was not squarely before this Court in this case, and I do not purport to
decide broader questions concerning the legitimacy of or limits on the Board’s power to issue retroactive
decisions here.
 MALTZ v. WITTERICK
• Maltz v. Witterick, 2016 FC
524 (CanLII), <
https://canlii.ca/t/gr8mf>
 Royal Conservatory v Macintosh &
Conservatory Canada
• Royal Conservatory of Music
v. Macintosh (Novus Via
Music Group Inc.), 2016 FC
929 (CanLII), <
https://canlii.ca/t/h4vbn>
 York U v. Access Copyright
• York University v. Canadian
Copyright Licensing Agency
(Access Copyright), 2021 SCC
32 (CanLII) <
https://canlii.ca/t/jh8bc>
 Why did York and Universities Canada
Bet the Farm on its Guidelines?
• Prof. Katz & I were critical about this at the outset
• It was an unnecessary and potentially very costly strategy that almost
resulted in snatching defeat from the jaws of victory
• York’s attention and resources in the litigation seemed almost all
focused on its guidelines with apparently little attention on whether
final approved tariffs were actually mandatory
• York advised trial judge that 2015 SCC decision in CBC v. SODRAC was
merely “very instructive”
• In the 2017 trial decision, York lost decisively on all fronts:
Canadian Copyright Licensing Agency v. York University, 2017 FC 669
(CanLII), [2018] 2 FCR 43, <https://canlii.ca/t/h4s07>
 Guidance from the SCC in York Decision
[102] In other words, contrary to the Federal Court of Appeal’s view, in the educational context it is not only the institutional perspective that
matters. When teaching staff at a university make copies for their students’ education, they are not “hid[ing] behind the shield of the user’s
allowable purpose in order to engage in a separate purpose that tends to make the dealing unfair”.
[103] It was therefore an error for the Court of Appeal, in addressing the purpose of the dealing, to hold that it is only the “institution’s
perspective that matters” and that York’s financial purpose was a “clear indication of unfairness” (paras. 238 and 241). Funds “saved” by proper
exercise of the fair dealing right go to the University’s core objective of education, not to some ulterior commercial purpose (see Lisa Macklem
and Samuel Trosow, “Fair Dealing, Online Teaching and Technological Neutrality: Lessons From the COVID-19 Crisis” (2020), 32 I.P.J. 215, at p.
238). The purpose of copying conducted by university teachers for student use is for the student’s education. But in every case, all relevant
facts must be taken into account in order to determine the fairness of the dealing.
[104] And the trial judge’s criticism of York’s Guidelines on the basis that different portions of a single work could be distributed to different
students, such that an author’s entire work could end up being distributed in the aggregate, is also contradicted by SOCAN, which held that
“[s]ince fair dealing is a ‘user’s’ right, the ‘amount of the dealing’ factor should be assessed based on the individual use, not the amount of the
dealing in the aggregate” (para. 41; see also Alberta (Education), at para. 29).
[105] And while it is true that “aggregate dissemination” is “considered under the ‘character of the dealing’ factor” (SOCAN, at para. 42; see
also CCH, at para. 55; Alberta (Education), at para. 29), as this Court cautioned in SOCAN, “large-scale organized dealings” are not “inherently
unfair” (para. 43). In SOCAN, where copies could easily be distributed across the internet in large numbers, this Court warned that focussing on
the “aggregate” amount of dealing could “lead to disproportionate findings of unfairness when compared with non-digital works” (para. 43). By
extension, the character of the dealing factor must be carefully applied in the university context, where dealings conducted by larger
universities on behalf of their students could lead to findings of unfairness when compared to smaller universities. This would be discordant
with the nature of fair dealing as a user’s right.
[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.
 “MAKING AVAILABLE” IN THE SCC
• Society of Composers, Authors and Music Publishers of
Canada v. Entertainment Software Association, 2022 SCC 30
(CanLII), https://canlii.ca/t/jqgw0
• See Ariel Katz factum
https://scc-csc.gc.ca/WebDocuments-DocumentsWeb/39418/FM070
_Intervener_Ariel-Katz.pdf
• See CIPPIC factum https://scc-csc.gc.ca/WebDocuments-
DocumentsWeb/39418/FM060_Intervener_Canadian-Internet-Policy-
&-Public-Interest-Clinic.pdf
 THE FUTURE ACCORDING TO
YOGI BERRA

“It's tough to make

predictions, especially
about the future.”
 CASES TO WATCH CLOSELY

• Proctorio
• U of T v. Easy Group (T-948-22)
• Blacklock’s (T-1862-15)
• Voltage v. Doe A-129-22 (Mass default)
• Voltage v. Salna (reverse class action) (T-662-16)
• Internet Archive (USA)
• BTW, should Internet Archive move to Canada?
 GUIDANCE RE GUIDELINES
• The need to “actualize” users’ rights in PSE
• Adaptation of US OER Guidelines could be very helpful but broader FD
guidelines needed
• U of T update is disappointing and takes several steps backwards from
2012 – notwithstanding SCC
• Don’t look to Universities Canada for leadership on guidelines
• It’s long history of nearly snatching defeat from the jaws of victory
• Individual institutions or smaller associations should do their own
updates of fair dealing guidelines and let the market choose and
adopt the best suggestions
• Need to get legal and strategic advice that is truly independent
 RISK AVERSION
• Nothing to fear but fear itself
• Access Copyright has no legal standing to sue for
copyright infringement and its “tariffs” are not
mandatory.
• Limits on statutory d damages for non-
commercial infringement. See next slide
• Note Georgia State litigation – David stood up to
Goliath
• Showing too much weakness may invite litigation
• Role of universities and colleges is to promote
education and scholarship – not to be collection
agents for Access Copyright
• Some lawyers are too risk averse and this can be
contagious to their clients
• Sometimes better to seek forgiveness rather
than permission
 The “NON-COMMERCIAL” FACTOR
• 38.1 (1) Subject to this section, a copyright owner may elect, at any
time before final judgment is rendered, to recover, instead of damages
and profits referred to in subsection 35(1), an award of statutory
damages for which any one infringer is liable individually, or for
which any two or more infringers are liable jointly and severally,
• …
• (b) in a sum of not less than $100 and not more than $5,000 that the court
considers just, with respect to all infringements involved in the proceedings
for all works or other subject-matter, if the infringements are for non-
commercial purposes.
Infringements not involved in proceedings
(1.12) If the copyright owner has made an election under subsection (1)
with respect to a defendant’s infringements that are for non-commercial
purposes, they are barred from recovering statutory damages under this
section from that defendant with respect to any other of the defendant’s
infringements that were done for non-commercial purposes before the
institution of the proceedings in which the election was made.
Marginal note: No other statutory damages
(1.2) If a copyright owner has made an election under subsection (1)
with respect to a defendant’s infringements that are for non-commercial
purposes, every other copyright owner is barred from electing to recover
statutory damages under this section in respect of that defendant for any
of the defendant’s infringements that were done for non-commercial
purposes before the institution of the proceedings in which the election
was made.

Note: actual damages may be available if plaintiff so attempts

 DIRECTIONS IN THE COURTS

• IP Chamber in Federal Court

Chamber, Echo Chamber and/or Star Chamber?
https://excesscopyright.blogspot.com/2023/05/ip-judges-in-federal-court-chamber-echo.html

• SCC

Impact of departure of Justices McLachlin, Rothstein, Abella, and

Brown
 CURRENT LEGISLATIVE ISSUES

• Bill C-11
• Bill C-18
• Right to repair – an opportunity to clarity fair dealing & circumvention?
• Resale rights? Great expectations?
• Copyright ???
• Fair Dealing under fire
• Don’t lose sight of 17 USC 107
• https://www.law.cornell.edu/uscode/text/17/107
• “Mandatory”
US Law re Fair Use and Education 17 USC
107
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted
work, including such use by reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. In determining whether the use made of
a work in any particular case is a fair use the factors to be considered shall include—
(1)the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
(2)the nature of the copyrighted work;
(3)the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
(4)the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such
finding is made upon consideration of all the above factors.
A New Collective of the Academy, by the
Academy & for the Academy?
 New collective???
 My 1999 “Alternative Collective” paper
 Antitrust aspect of publishing
 New Elsevier platform model and Dutch
legislation
 Elsevier owns SSRN
 Pay to pay model in scholarly publishing
 Peer review revisited
 NYU journal Hoax
 Article processing charges
 The Sokal Hoax & Beyond
 Longer Terms Legislative and Strategic Issues

• Crown copyright

• Indigenous

• AI
• Copyright Board
 SHORT TERM STRATEGY

• Best defence = good offence

• Add “such as” to s. 29 and keep “education”

• Demand reform or riddance of the Copyright Board

• Make agreement to override or waive fair dealing

unenforceable.
E.g. See s. 29(4)(b) of UK legislation
https://www.legislation.gov.uk/ukpga/1988/48/section/29
 POLITICS
• PSE sector needs to be heard
AND LOBBYING
• Efforts to date somewhat underwhelming – perhaps due to too much reliance on
Universities Canada
• Some hopeful signs of change at UC and within universities
• G-15 needs to be more assertive
• Why no response to Kate Taylor opinion?
• What happened to “militant librarians”
• Need to get to Ministers directly – not simply Parliamentary Secretaries of MINO
or policy officials
• Ministers are being sheltered from info – plausible deniability
• Stay tuned for possible prorogation and/or cabinet shuffle
• Things may move in the fall and/or 2024
• Be ready – it will be wild ;-)
 LIES v. TRUTH
BIG LIES
• That the 2012 amendment
adding “education” is the cause
of Access Copyright’s woes
• That the educational sector is
not paying where required
• That Copyright Board tariffs
should be enforceable and
“mandatory”
BIG TRUTHS
• 3 SCC cases on fair dealing
BEFORE 2012 amendment
effective
• 2 SCC cases re “mandatory”
tariffs not being mandatory
• USA has hard-wired “teaching
including multiple copies for
classroom use” since 1976
• USA has no “mandatory” tariffs
The Leadership Lacuna
• CARL is showing leadership but lacks
the resources of CAUT (Canadian
Association of University Teachers),
Universities Canada, etc.
• Universities Canada and York’s strategy
re fair dealing guidelines, mandatory
tariffs etc. very nearly snatched defeat
from the jaws of victory
• See Ariel Katz’s
“Access Copyright v. York University: An
Anatomy of a Predictable But Avoidabl
e Loss”
blog from 2017
• Work with friendly organizations but
Militant Librarians
 MY LEGAL MENTORS & COLLABORATPRS
INLCUDE GORDON F. HENDERSON & ARIEL KATZ
 NUDGING THE LAW:
• Past is Prologue
• What’s to come is still unsure
• Do not go gentle into that good
night,
Old age should burn and rave at
close of day;
Rage, rage against the dying of
the light.
THANKS FOR THE MEMORIES…
 POST VALEDICTORY?

•Un-conference = un-goodbye
•You know where to find me
•Au revoir