Court Files Nos.

A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY APPELLANTS - and MARK FOURNIER and CONSTANCE FOURNIER RESPONDENTS

REPLY OF THE PROPOSED INTERVENER SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC (Motion for leave to intervene, to be heard in writing) Pursuant to Rules 109 and 369 of the Federal Code Rules

Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) University of Ottawa, Faculty of Law, Common Law Section 57 Louis Pasteur Street Ottawa, ON, K1N 6N5 David Fewer, LSUC # 45307C Tel: (613) 562-5800 ext. 2558 Fax: (613) 562-5417 Email: dfewer@uottawa.ca Counsel for the Proposed Intervener

TO:

THE REGISTRAR Federal Court of Appeal Cassels Brock & Blackwell LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey M. Chisick, LSUC #46572R Jason Beitchman, LSUC #56477O Tel: (416) 869-5403 Fax: (416) 644-9326 Email: cchisick@casselsbrock.com Solicitors for the Appellant, National Post Company

AND TO:

AND TO:

Brazeau Seller LLP Barristers and Solicitors 55 Metcalfe Street Suite 750 Ottawa, ON K1P 6L5 James Katz, LSUC #49046K Tel: (613) 237-4000 ext. 267 Fax: (613) 237-4001 Email: jkatz@brazeauseller.com Solicitors for the Appellant, Richard Warman

AND TO:

Mark and Constance Fournier 2000 Unity Road Elginburg, ON K0H 1N0 Tel: (613) 929-9265 Fax: (609) 379-8793 Email: connie@freedominion.ca Respondents

i TABLE OF CONTENTS

Description WRITTEN REPRESENTATIONS SCHEDULE A – DRAFT ORDER

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1 Court File Nos. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY APPELLANTS - and MARK FOURNIER and CONSTANCE FOURNIER RESPONDENTS

WRITTEN REPRESENTATIONS OF SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC (Motion for leave to intervene)

1. This constitutes the proposed intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic’s (“CIPPIC”) reply in its motion for leave to intervene in National Post v. Fournier, Federal Court of Appeal File Nos. A-394-12 and A-395-12. 2. In its respondent’s record, the Appellant, National Post Company (“National Post” or the “Appellant”) raised a number of issues with respect to the scope of CIPPIC’s proposed intervention in this matter. National Post asks this Court to place express limits on the scope of CIPPIC’s intervention. National Post additionally argues that elements of CIPPIC’s intervention address issues beyond those raised by the parties. CIPPIC addresses these issues below. (a) CIPPIC’s intervention order should not be overly restrictive 3. In paragraph 4 of its Notice of Motion, CIPPIC lists a number of issues which it intends to address if granted leave to intervene. The National Post Appellant asks the Court to impose

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2 this list (as modified by it) as a condition of CIPPIC’s intervention order. An updated version of this modified list of issues is provided here for convenience: (a) The application of the statutory limitation period set out in subsection 41(1) of the Copyright Act, R.S.C. 1985, c. C-42, to works published on the Internet; (b) The scope of copyright liability that an intermediary can incur for a work posted to its site by a third party; (c) The interpretation of "distinctive", as stated in the definition of "work" in section 2 of the Copyright Act; (d) What constitutes "substantial" reproduction as stated in subsection 3(1) of the Copyright Act; (e) The interpretation of statutory conditions precedent to the fair dealing exceptions, as listed in section 29 and sections 29.1 and 29.2 of the Copyright Act; and (f) The circumstances in which an excerpt for the purpose of news reporting or criticism should be considered "fair" dealing. 4. CIPPIC acknowledges that its intervention should be limited to addressing issues raised by the parties of this proceeding and does not seek to expand these issues. However, CIPPIC would seek to avoid an overly restrictive intervention order that might prevent it from fully addressing the issues raised by the parties. For example, in its Notice of Motion, CIPPIC lists the application of the statutory limitation period under the Copyright Act to works published on the Internet as one of the issues it wishes to address. However, as is made clear by the more detailed explanation of this issue found in CIPPIC’s memorandum of fact filed in support of its motion for leave to intervene, fully addressing this issue may also entail an analysis of what constitutes ‘reproduction’ under section 3(1) the Copyright Act.1 5. This Court has recognized in the past that it is not desirable to prematurely and restrictively limit the scope of an intervention at an early stage of a proceeding.2 In the past, where the scope of an intervener’s intervention was limited as part of its intervention order, this was done in narrow appeals where few issues were before the Court. For example, in Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 119, this court expressly limited an intervener’s intervention to addressing the issue of whether the Governor-in1

CIPPIC, Memorandum of Fact and Law filed in support of its Motion for Leave to Intervene, Warman et. al. v. Fournier, Federal Court of Appeal Case File Nos. A-394-12 and A-395-12, filed May 1, 2013, para. 17. 2 Sawbridge Band v. Canada, 2011 FCA 341, para. 7.

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3 Council failed to consider relevant factors in reaching a decision under the Telecommunications Act.3 This was, in fact, the only issue raised under appeal,4 and its scope was framed by the Court in sufficiently broad terms so as to ensure that the intervener retained enough latitude to explore additional sub-issues as they arose. 6. CIPPIC therefore accepts that its intervention should be expressly limited to issues raised by the parties to this Appeal, but respectfully asks that it not be unduly restricted in the issues and sub-issues that it will address if granted leave. We include a revised Draft Order to this effect as ‘Schedule A’. (b) CIPPIC’s proposed intervention does not raise new issues 7. The National Post Appellant argues that the issue set out in paragraph 4(b) of CIPPIC’s Notice of Motion is not currently before the Court and therefore beyond the scope of the proposed intervention. Paragraph 4(b) of CIPPIC’s Notice of Motion sets out the proposed intervener’s intention to address “the scope of copyright liability that an intermediary can incur for a work posted to its site by a third party”,5 if granted leave to intervene. The National Post Appellant argues, in its respondent’s record, that this issue was not considered in the proceeding below and did not form part of the judgment under appeal. The National Post Appellant continues to state that the issue in question was not raised by it in its Notice of Appeal, nor was it addressed by any of the parties to this Appeal in their respective memoranda of law. Finally, it notes that the evidentiary record of this proceeding may not be sufficient to address this issue.6 8. The scope of copyright liability imposed on an intermediary, such as the online discussion site operated by the Respondents, for the activities of third parties to its service is directly raised by this Appeal. It is raised by the National Post Appellant’s claim that the Respondents are liable for a work reproduced upon their blogging platform, without their specific knowledge, by a third party user of that platform. While this head of liability was not

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Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 119, paras. 4 and 7. Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 119, para. 3. 5 Motion to Intervene, CIPPIC, p. 3, para. 4(b). 6 National Post Company, Written Representations, Respondent’s Record to CIPPIC’s Motion for Leave to Intervene, Warman et. al. v. Fournier, May 13, 2013, paras. 16-17.

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4 addressed by the court below, that gap is pointed to by the National Post Appellant as an element of its Appeal, as set out in its memorandum of fact and law: the application judge further failed to address the fact that the respondents had also reproduced the full text of the Kay Work…and did not consider whether this reproduction of the full text amounted to copyright infringement.7 By raising this point of appeal, the National Post Appellant placed the scope of intermediary liability for third party content squarely within the scope of this proceeding. 9. Copyright law has long recognized that the limited scope of copyright liability for intermediaries who merely facilitated infringing activity by providing the means for third party activity. Where a third party user makes use of an intermediary’s service in a manner that infringes copyright law, the intermediary is not typically held directly liable.8 While the intermediary can be held to have authorized the activity in question, such a finding will be dependent on whether the intermediary had specific knowledge of the infringing act and, by extension, how the intermediary acted upon gaining such specific knowledge.9 10. If granted leave, CIPPIC does not intend to address whether the factual elements of this case are sufficient to establish secondary intermediary liability. Our intervention will be limited to ensuring this Court applies the proper test for liability so that it can assess whether the plaintiff has met its onus in line with the proper and applicable legal principles. However, it is our view that the factual record of this proceeding does include sufficient facts for the Court to assess whether that test has been met or not. The record of this proceeding clearly establishes that the full text of the work in question (the Kay Work) was not reproduced by the Respondents, but rather by a third party commenter on the site which the Respondents host.10 The record of this proceeding further establishes that the Respondents removed the full text of the Kay Work upon being made aware that it had been reproduced on their site.11

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National Post Company, Appellant’s Memorandum of Fact and Law, Warman et. al. v. Fournier, Federal Court of Appeal File Nos. A-394-12 and A-395-12, Submitted March 8, 2013, paras. 20 and 26(b). 8 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, para. 38. 9 Ibid. 10 Warman v. Fournier, 2012 FC 803, para. 7. See also National Post Company, Appellant’s Memorandum of Fact and Law, Warman et. al. v. Fournier, Federal Court of Appeal File Nos. A-394-12 and A-395-12, Submitted March 8, 2013, Appendix A. 11 Ibid.

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5 (c) Limits on other issues 11. In its respondent’s record, the National Post Appellant objects to the proposed intervener’s use of the adjective ‘minor’ in describing the type of excerpting that can be characterized as fair dealing within the context of the Copyright Act.12 CIPPIC confirms that its use of the term ‘minor’ was not intended to imply any factual determination as to the nature of the specific activity at issue in this Appeal. CIPPIC’s intervention, if granted, will address the broader legal question of how the six established ‘fair dealing’ factors established by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, should be applied to the context of online excerpting. (d) Order sought 12. CIPPIC therefore respectfully seeks an Order granting it leave to intervene in the A-394-12 and A-395-12 appeals (“Appeals”) in accordance with the following revised terms: (a) CIPPIC shall be bound by the record of these Appeals; it will not introduce new evidence, nor raise new issues not already raised by the parties; its submissions shall not be duplicative of those of other parties to these Appeals; (b) CIPPIC shall be permitted to file a memorandum of fact and law, not to exceed 20 pages, which shall be served and filed within 30 days of the date of this Order. The Appellants and Respondents shall be permitted to file a responding memorandum of fact and law not to exceed 20 pages, within 30 days of the service of CIPPIC's memorandum. There shall be no reply, subject to further direction from the Court; (c) CIPPIC shall be permitted to address the Court at the hearing of the Appeals, but its oral submissions shall not exceed 30 minutes, subject to further directions from the Court; (d) CIPPIC shall have no right to appeal;

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National Post Company, Written Representations, Respondent’s Record to CIPPIC’s Motion for Leave to Intervene, Warman et. al. v. Fournier, May 13, 2013, para. 21.

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SCHEDULE “A” Court File No. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL Dated at Ottawa this [DATE] BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY APPELLANTS - and -

MARK FOURNIER and CONSTANCE FOURNIER RESPONDENTS ORDER UPON MOTION by the applicant, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), for an order pursuant to Rule 109 of the Federal Courts Rules, 1998, S.O.R./98-106, to grant it leave to intervene in two joint appeals, Federal Court of Appeal File Nos. A-392-12 and A395-12 (“Appeals”); AND THE MATERIALS FILED having been read and duly considered; IT IS HEREBY ORDERED THAT: The applicant is granted leave to intervene in the Appeals on the following terms: 1. CIPPIC shall be bound by the record of these Appeals; it will not introduce new evidence, nor raise new issues not already raised by the parties; its submissions shall not be duplicative of those of other parties to these Appeals;

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2. CIPPIC shall be permitted to file a memorandum of fact and law, not to exceed 20 pages, which shall be served and filed within 30 days of the date of this Order. The Appellants and Respondents shall be permitted to file a responding memorandum of fact and law not to exceed 20 pages, within 30 days of the service of CIPPIC's memorandum. There shall be no reply, subject to further direction from the Court; 3. CIPPIC shall be permitted to address the Court at the hearing of the Appeals, but its oral submissions shall not exceed 30 minutes, subject to further directions from the Court; 4. CIPPIC shall have no right to appeal; 5. No costs shall be awarded in favour of or against CIPPIC in relation to its intervention in the Appeals; 6. CIPPIC shall be added to the style of cause in the Appeals as an intervener; and 7. Such other terms as may be appropriate and this Honourable Court may permit.

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