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IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
THE PROVINCE OF ALBERTA AS REPRESENTED BY THE MINISTER OF EDUCATION AND OTHERS* APPELLANT (APPELLANT) AND: THE CANADIAN COPYRIGHT LICENSING AGENCY Operating as “ACCESS COPYRIGHT” RESPONDENT (RESPONDENT)
AFFIDAVIT OF ARIEL KATZ (Pursuant to Rules 6, 47 and 55 of the Rules of the Supreme Court of Canada)
* The Province of British Columbia as represented by the Minister of Education; The Province of Manitoba as represented by the Minister of Education, Citizenship and Youth; The Province of New Brunswick as represented by the. Minister of Education; The Province of Newfoundland and Labrador as represented by the Minister of Education; The Northwest Territories as represented by the Minister of Education, Culture and Employment; The Province of Nova Scotia as represented by the Minister of Education; The Territory of Nunavut as represented by the Minister of Education; The Province of Ontario as represented by the Minister of Education; The Province of Prince Edward Island as represented by the Minister of Education; The Province of Saskatchewan, as represented by the Minister of Education The Yukon Territory as
represented by the Minister of Education; The Airy and Sabine District School Area Board; The Algoma District School Board; The Algonquin and Lakeshore Catholic District School Board; The Asquith-Garvey District School Area Board; The Atikokan Roman Catholic Separate School Board; The Avon Maitland District School Beard; The Bloorview MacMillan School Authority; The Bluewater District School Board; The Brant Haldimand Norfolk Catholic District School Board; The Bruce-Grey Catholic District School Board; The Campbell Children's School Authority; The Caramat District School Area Board; The Catholic District School Board of Eastern Ontario; The Collins District School Area Board; The Connell and Ponsford District School Area Board; The Conseil des écoles catholiques du Centre-Est de l'Ontario; The Conseil des écoles publiques de l'Est de l'Ontario; The Conseil des écoles separees catholiques de Dubreuilville; The Conseil des écoles separees catholiques de Foleyet; The Conseil scolaire de district catholiques Centre-Sud; The Conseil scolaire de district catholique de l'Estontarien; The Conseil scolaire de district catholique des Aurores bon~ales; The ConseiI scolaire de district catholique des Grandes Rivieres; The Conseil scolaire de district catholique du Nouvel-Ontario; The Conseil scolaire de district catholique Franco-Nord; The Conseil scolaire de district des écoles catholiques de Sud-Ouest; The Conseil scolaire de district du Centre Sud-Ouest; The Conseil scolaire de district du Grand Nord de l'Ontario; The Conseil scolaire de district du NordEst de l'Ontario; The District School Board of Niagara; The District School Board Ontario North East; The Dufferin-Peel Catholic District School Board; The Durham Catholic District School Board; The Durham District School Board; The Foleyet District School Area Board; The Gogama District School Area Board; The Gogama Roman Catholic Separate School Board; The Grand Erie District School Board; The Greater Essex County District School Board; The Halton Catholic District School Board; The Halton District School Board; The HamiltonWentworth Catholic District School Board; The Hamilton-Wentworth District School Board; The Hastings & Prince Edward District School Board; The Hornepayne Roman Catholic Separate School Board; The Huron Perth Catholic District School Board; The Huron-Superior Catholic District School Board; The James Bay Lowlands Secondary School Board; The Kawartha Pine Ridge District School Board; The Keewatin-Patricia District School Board; The Kenora Catholic District School Board; The Lakehead District School Board; The Lambton Kent District School Board; The Limestone District School Board; The Missarenda District School Area Board; The Moose Factory Island District School Area Board; The Moosonee District School Area Board; The Moosonee Roman Catholic Separate School Board; The Murchison and Lyell District School Area Board; The Nakina District School Area Board; The Near North District School Board; The Niagara Catholic District School Board; The Niagara Peninsula Children's Centre School Authority; The Nipissing-Parry Sound Catholic District School Board; The Northeastern Catholic District School Board; The Northern District School Area Board; The Northwest Catholic District School Board; The Ottawa Children's Treatment Centre School Authority; The Ottawa Carleton Catholic District School Board; The Ottawa~Carleton District School Board; The Parry Sound Roman Catholic Separate School Board; The Peel District School Board; The Peterborough Victoria Northumberland and Clarington Catholic District School Board; The Rainbow District School Board; The Rainy River District School Board; The Red Lake Area Combined Roman Catholic Separate School Board; The Renfrew County Catholic District School Board; The Renfrew County District School Board; The Simcoe County District School Board; The Simcoe Muskoka Catholic District
School Board; The St Clair Catholic District School Board; The Sudbury Catholic District School Board; The Superior North Catholic District School Board; The Superior-Greenstone District School Board; The Thames Valley District School Board; The Thunder Bay Catholic District School Board; The Toronto Catholic District School Board; The Toronto District School Board; The Trillium Lakelands District School Board; The Upper Canada District School Board; The Upper Grand District School Board; The Upsala District School Area Board; The Waterloo Catholic District School Board; The Waterloo Region District School Board; The Wellington Catholic District School Board; The Windsor-Essex Catholic District School Board; The York Catholic District School Board; and The York Region District School Board.
I, ARIEL KATZ, of the City of Toronto in the Province of Ontario, AFFIRM AS FOLLOWS:
I. OVERVIEW 1. This affidavit is in support of motions by the Centre for Innovation Law and Policy
(“CILP”) at the Faculty of Law, University of Toronto to: a. Extend the period of time (pursuant to Rule 6 of the Rules of the Supreme Court of Canada) to permit it to file a motion for leave to intervene in this appeal; and b. Grant leave to intervene in this appeal (pursuant to Rules 47 and 55 of the Rules of the Supreme Court of Canada).
II. ABOUT THE DEPONENT 2. I am the Director of CILP and as such have knowledge of the matters deposed herein.
This affidavit outlines the expertise of CILP regarding Canadian copyright law and its interest in this appeal. Where facts are based on information obtained from others, I believe that information to be true. 3. I am also a tenured Associate Professor at the Faculty of Law University of Toronto
where I also hold the Innovation Chair in Electronic Commerce. 4. My formal qualifications are as follows: LLB (Hebrew University, Jerusalem) 1997,
LLM (magna cum lauda) 2001, SJD (University of Toronto) 2005 (Hartle Award for Outstanding Graduate Scholarship). 5. My general area of research involves intellectual property law, its interface with
competition law, and their respective effects on innovation, with allied interests in electronic commerce, the regulation of international trade and particularly the intersection of all these fields. More specifically, I have studied, written, taught and presented on a wide range of topics including network effects and software piracy, intellectual property and market power, abuse of dominance, parallel importation, pharmaceuticals regulation, and trademarks. A significant part
of my scholarship involves the collective administration of copyrights, and often includes an international and comparative outlook. I also regularly teach courses on these topics at the Faculty of Law, University of Toronto. My complete CV, including a list of publications is attached as EXHIBIT “A”. 6. My interest in these issues has also prompted me to become involved, in my personal
capacity, as an objector in the proceedings before the Copyright Board of Canada, with respect to the Proposed Tariff that the Respondent seeks to levy on Canadian Post-Secondary Institutions. If approved by the Copyright Board, this Proposed Tariff would entitle the Respondent to charge a fee of $45 per student per year, a dramatic increase from the previous fees that universities and colleges had negotiated with the Respondent before this Court issued its ruling in CCH Canadian Ltd. v. Law Society of Upper Canada (CCH)  1 S.C.R. 339 (“CCH”). In addition, the Proposed Tariff would subject academic institutions, including each and every instructor, student or staff member to extremely intrusive and onerous reporting and auditing requirements, including the examination of the email of members of the university community. This would effectively constitute a massive and unprecedented surveillance apparatus, and, together with other proposed terms, render the notion of “users’ right”, recognized by this Court as an integral part of the Copyright Act, meaningless. It can be reasonably expected that in the absence of clear guidance from this Court—based on sound first principles—issues such as the ones that underlie this appeal will continue to occupy the Copyright Board and various Canadian courts for many years to come. 7. This appeal raises issues that are directly related to CILP’s mandate, which includes
education and research with respect to copyright law. The Appellants seek to reverse a decision of the Copyright Board, which was upheld by a Federal Court of Appeal. The crux of this appeal is the meaning and the application of ss. 29 and 29.1 of the Copyright Act in the context of education. Together with the appeal in SOCAN v. Bell (SCC No. 33,800) (the “Previews case”) that will be heard concurrently with this one, this appeal will determine the meaning of “fair dealing” in Canadian copyright law, for the first time since this Honourable Court’s decision in CCH and for many years to come. While these issues are extremely important to the Applicants in the Kindergarten to Grade 12 context, it is clear that that they become even more important as one progresses through the higher levels of post-secondary education in Canada.
The CCH decision was the first decision in the history of this Honourable Court to focus
on fair dealing, and one of the very few decisions by a highest-level court of a comparable jurisdiction ever to do so. 9. The CCH decision is recognized in Canada and internationally as a landmark in
copyright law. This Court’s holding that users’ rights are an equally constitutive element of copyright law is highly esteemed globally. CILP wishes to ensure that the CCH decision’s recognition of users’ rights is not retrenched, and that limitations on copyrights do not become de facto “loopholes” once again, as CCH cautioned against. 10. The outcome of this appeal and the appeal in the Previews case will also determine
whether copyright law in Canada will be capable of being sensibly implemented in the context of rapidly evolving technologies, social practices, market structures, and business practices. These two cases present an opportunity for ensuring that the application of copyright law in Canada to such changes will be based on, and guided by, sound first principles, in a manner that will provide sufficient predictability as well as appropriate flexibility and adaptability.
III. BACKGROUND OF THE CENTRE FOR INNOVATION LAW AND POLICY 11. The Centre for Innovation Law and Policy is a part of the University of Toronto, Faculty
of Law (“the Faculty of Law”). It was founded in 1999, with funding from the Ontario Research and Development Challenge Fund, as well as private-sector support and matching funds from the University of Toronto. However, the positions taken here and those that will be taken should leave to intervene be granted are made on behalf of CILP alone and not on behalf of the University of Toronto, the Faculty of Law, or any of CILP’s supporters. More past and current information on CILP can be found on CILP’s website at www.innovationlaw.org. 12. CILP supports and facilitates the study of law and its relationship to technology, by
sponsoring and cultivating research, teaching and knowledge exchange on law, legal theory, and policy related to technology, broadly understood. As a scholarly research centre, CILP, through the scholarship of the faculty members affiliated with it, approaches foundational, theoretical and topical issues concerning law and technology through the rubrics of law, philosophy, political science, economics, history, and cultural studies, with particular expertise in intellectual
property, cyberlaw, privacy, and biotechnology law. In addition to the research carried by faculty members affiliated with CILP, CILP supports various curricular and extra-curricular activities at the Faculty of Law, related to CILP’s mandate. 13. Faculty members affiliated with CILP regularly teach courses at the Faculty of Law,
supervise students’ research, and organize and participate in a wide range of conferences, workshops, symposia and other scholarly activities in Canada and abroad. They are active participants in various discussions on innovation law and policy matters in Canada and beyond. They regularly publish in leading journals and are widely cited. 14. CILP draws on the collective expertise of the faculty members affiliated with it, as well
as on a network of scholars, practitioners, and policy-makers around the world with which they frequently interact. It also proudly benefits from the wisdom and insights of its students, the research papers and dissertations that they write, and the ongoing critical dialogue that they constitute an integral part of. 15. In support of its mission, CILP has hosted numerous events focusing on copyright law
and copyright reform since its inauguration. For example, leading experts from across Canada and the US participated in a conference on the Google Book Search Project in 2010. The conference brought together various commentators, players and stakeholders to draw lessons from the American experience and to consider possible Canadian solutions for the copyright challenges presented by the mass digitization and reuse of works. The scope of fair dealing (or “fair use” as the doctrine is referred to in the United States) lay at the heart of the controversy around the Google Books project, and one of the issues explored in that conference was how the project, or a similar mass digitization project, might play out in Canada in light of Canadian fair dealing jurisprudence. 16. In February 2012, Canadian and Israeli experts will meet for a two-day workshop in
Jerusalem to discuss the two countries’ common copyright law heritage and how it has influenced their respective approaches to contemporary copyright law, users’ rights, and innovation policies. Among other issues, this workshop (in which CILP is closely involved) will explore the shared origins of the copyright laws of the two countries and the similarities and differences in their current approaches to fair dealing, including this Court’s judgment in CCH
and recent rulings of the Supreme Court of Israel on similar issues. 17. This coming October, CILP will host a conference on Cloud Computing discussing law
and policy issues in the “cloud”, which is a term that describes the phenomenon of the massive storage, manipulation and exchange of data on remote servers by any authorized person located anywhere at any time. Indeed, it is already apparent that the “cloud” will be at the core of many copyright issues in the foreseeable future. 18. Since its inception, CILP has been a focal point for debate and discussion on innovation
law and policy issues. It has been an active supporter of an annual conference organized by the Faculty of Law’s Technology and Intellectual Property Student Group. It has hosted the Annual Grafstein Lecture on Communications, which brought to Toronto an impressive list of speakers such as Prof. Margaret Jane Radin, Prof. Mark Rose, Prof. Neil Netanel, Prof. Jessica Litman, the late Prof. C. Edwin Baker, Ambassador David A. Gross, Prof. Yochai Benkler, Mr. Peter Grant, Prof. A. Michael Froomkin, and Prof. Lawrence Lessig; CILP’s Innovation Law and Policy Workshop provided a venue for scholars from across the world to present and discuss their cutting edge scholarship. 19. CILP’s Graduate Fellowships have attracted to the Faculty of Law stellar graduate
students from across the world. Many of these fellows have received academic positions in leading law schools in Canada and elsewhere, while others have continued to key positions in government or private practice.
IV. THE REASONS FOR SEEKING AN EXTENSION 20. Being primarily a research institution, CILP does not have an ongoing structure or
resources devoted to litigation, and it operates within the University of Toronto, Faculty of Law, which, as an academic unit, is non-hierarchical and collegial. The lack of a permanent infrastructure for litigation required setting up an ad hoc faculty advisory group comprised of members with litigation expertise in addition to expertise on the substantive legal issues. Unfortunately, timely compliance with the internal procedures for approving the filing of an application for leave to intervene turned out to be extremely difficult during transition between the last days of summer vacation (when colleagues are scattered around the globe) and the hectic
days of the beginning of the academic year. Nevertheless, over the last few days several faculty members have volunteered to serve as an ad hoc advisory group and this concerted effort, including over the weekend of September 17 and 18, 2011, has turned out to be very helpful. CILP believes that its request for an extension of time to file its motion for leave to intervene will not prejudice or inconvenience any party or proposed intervener herein. This request has been submitted as quickly as possible under the circumstances. Indeed, as I explain further below, if this request is granted and leave to intervene is permitted, the Court may actually save some time overall because the submissions that CILP proposes may assist in demonstrating that certain potentially lengthy arguments and submissions are simply unnecessary in this appeal. 21. A significant contributing factor for not submitting the motion for leave to intervene on
time was that CILP had been informally advised that the Association of Universities and Colleges of Canada (AUCC) would seek leave to intervene, and that the Canadian Association of University Teachers (CAUT) and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) of the University of Ottawa would also likely seek leave to intervene in this case. CILP believed that, if this were the case, the various perspectives of copyright scholars, academic teachers and researchers, as well as of the broader university community, would be adequately represented by these interveners, and that it would be possible to avoid what might have been a needless use of the Court’s time as well as of CILP’s own limited resources. 22. However, after carefully studying the various submissions that have been filed by the
proposed interveners and the Appellants, CILP believes that there are crucial issues that have not been addressed by any party or proposed intervener. These issues are not minor ones, but rather significant and fundamental. Addressing them would not only be helpful but arguably indispensable to this Court in ruling on what is clearly the most important copyright case for research, education and learning to ever face this Court or any other highest court of any comparable jurisdiction. 23. The Copyright Board made several holding with respect to exceptions to copyright
generally and about the purposes explicitly specified in ss. 29 and 29.1 of the Copyright Act. The Federal Court of Appeal explicitly endorsed some of them, declined to overrule others, and
impliedly endorsed the rest. Taken separately and as a whole, these holdings reflect a very rigid and restrictive approach to users’ rights. Unless overruled by this Court, these holdings might impede the most basic aspect of teaching: the careful examination and critical analysis of texts, pictures, and other works. Without clear guidance from this Court to the contrary, these holding could mean that without getting the copyright owner’s permission, and regardless of any measure of fairness, a teacher would be categorically prohibited from copying and distributing to students hand-outs of an article published in a newspaper, magazine or journal for critical discussion, because this would not fall under any of the enumerated purposes, as interpreted in the decisions below. 24. Submissions of the other parties and proposed interveners have failed to address many of
these issues. For example, they largely overlooked the Copyright Board’s holding that a copy cannot be made for the purpose of criticism unless incorporated into the criticism itself. They have also failed to address the Copyright Board’s finding with respect to the existence of ‘a practice or system’ or lack thereof, or to challenge its holding that the custom or practice in a particular trade or industry are relevant only to the extent that they are “accepted by both parties”. These submissions have not explicitly challenged the meaning given to the adjective ‘private’ in ‘private study’ or the holding that it necessarily excludes other types of study, and finally, they have not even considered the question of whether the list of explicitly specified purposes in ss. 29 and 29.1 undeniably excludes other purposes. 25. CILP will address these issues, and will present a cogent argument explaining why the
current Copyright Act does not support an outcome that might impede a fundamental aspect of any institutionalized learning (which is not different from the ways in which copies of works, including the references they rely on, are distributed to all parties participating in a court proceeding and to the court itself for their critical evaluation). CILP will argue that even though the Federal Court of Appeal purported to follow this Court’s ruling in CCH, the ruling of the Federal Court of Appeal would seriously undermine the recognition of broad users’ rights as part of copyright law, and explain why this is not, and cannot be, an outcome supported by the statutory scheme. 26. Furthermore, while CILP finds questions such as the effect of the Charter of Rights and
Freedoms (raised by CIPPIC)1 or that of various international treaties on the interpretation of the Copyright Act (raised by various proposed interveners supporting the Respondent) to be fascinating from an academic point of view, they are, in our view, entirely unnecessary for resolving this appeal, and create unnecessary distractions. Indeed, in the context of this appeal, the “three-step test” argument based upon the treaties is no more than a “red herring”.2 CILP firmly believes that the questions that this appeal raises can be answered fully within the framework set by the Copyright Act. Therefore, CILP believes that it can assist this Court by identifying how all the ingredients necessary for solving the issues under appeal already exist within the current framework. 27. In addition, CILP is of the view that AUCC and the Association of Canadian Community
Colleges (“ACCC”) have presented a very restrictive and narrow view that, if accepted by this Court, would actually push back the conclusions and the principles articulated by this Court in CCH. AUCC and the ACCC are the leading organizations representing Canadian postsecondary educational institutions, and yet, I have reluctantly concluded that, instead of presenting a bold position on matters that are at the heart of the academic mission and are crucial
Indeed, if this Court were to consider the impact of the Charter in this case, there could be other interesting constitutional issues that might be relevant. For example, whether the limitations that the Copyright Act imposes on educators and educational institutions—to the extent that they are different from those imposed on others—are unconstitutional by virtue of usurping the exclusive jurisdiction of the Provinces over education.
If the Court were to consider the effect of international treaties on the interpretation of the Copyright Act then it should consider not only the provisions that include the “three-step test”, but also provisions such as Article 7 of the TRIPS agreement, titled “Objective” and stating that “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.” In addition, there exist other treaties that raise similar interesting questions. For example, what is the effect of Article 15 of the International Covenant on Economic, Social and Cultural Rights, and its requirement, which provides that States Parties “recognize the right of everyone” both “to enjoy the benefits of scientific progress and its applications” and “to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The CILP submits that it is entirely unnecessary to answer these questions within this appeal. In any event, one plain fallacy of the arguments concerning the “three-step test” is that, if they were correct, then one would expect that the USA would be have long ago been adjudicated by the WTO to be in flagrant violation of international law based upon its very generous fair use provisions, containing an explicit exception for teaching and the use of multiple copies in the classroom that was codified in §107 of the American statute in 1976.
to its success, these organizations have presented a cramped and restrictive view of fair dealing that ignores many aspects of the decisions below that frustrate the academic mission. 28. All that AUCC and ACCC submissions request from this Court is to recognize very
specific carve outs that would apply in certain limited circumstances. For example, AUCC and ACCC ask this Court to declare “That fair dealing applies equally to the making of electronic copies of short excerpts of published works as it applies to the making paper copies of short excerpts of published works”. However, the issue of “electronic copies”, as such, is not even before this Court or in the record. Further, it is fundamental that making “short excerpts” might not even constitute a reproduction of a “substantial part” of a work and thus would be noninfringing, even without consideration of “fair dealing”. Thus, what AUCC and ACCC propose actually amounts to a retraction of the rights of users currently recognized by the statute as interpreted by this Court in CCH. 29. In other words, instead of standing for the proposition that users’ rights constitute an
integral part of the Copyright Act and enshrining it, AUCC and ACCC’s submissions request a return to the treatment of exceptions as “loopholes”, an approach clearly and rightly denounced by this Court in CCH. 30. As this Court has emphasized in the past, cases such as the one under appeal do not
concern only the interests of the direct parties involved, but pertain to issues “affected with a public interest” (Canadian Performing Right Society Ltd. v. Vigneux  S.C.R. 348, at para. 6). It appears, however, that AUCC and ACCC have chosen not to pursue positions that clearly and vigorously advocate the public interest, as many in the post-secondary educational community and the general public might understand such interest. Nevertheless, CILP firmly believes that it is important that this perspective should not be missing. 31. Since this crucial gap in the arguments before the Court did not become apparent until the
other proposed interveners had submitted their materials, CILP finds it necessary to request an extension of time. CILP believes that, with this extension and a grant of leave to intervene in this appeal, it will be able to assist this Court by addressing issues and providing a perspective that is missing from all other parties’ and interveners’ submissions, but are nonetheless important for guaranteeing the vitality of Canada’s educational, scientific, cultural, and innovative foundations.
The problem is exacerbated by the clearly concerted attempts by parties and other proposed interveners representing content owners in this case and the SOCAN Previews case to push back the landmark ruling of this Court in CCH. 32. In addition, neither the submission by CIPPIC nor the joint submission by CAUT and
Canadian Federal of Students (“CFS”) fill this void. CIPPIC focuses virtually entirely on the Charter and “Charter values”, which CILP believes is an unnecessary and distracting line of argument in this instance. CAUT’s and CFS’s request for a “robust” and “large and liberal” research regime, and their other related points, add little if anything, in CILP’s view, to what is already obvious in light of CCH.
V. CILP’S REASONS FOR SEEKING LEAVE TO INTERVENE 33. CILP has a direct interest in this appeal. As noted above, the issues that this appeal raises
fall squarely within CILP’s areas of expertise and interest. At the most basic level, being a research centre dedicated to the study of law and policy, CILP has an interest that copyright law in Canada develops in a way that serves the public interest. 34. More specifically, this appeal concerns the interpretation of terms such as ‘research’,
‘private’, ‘study’, ‘criticism’ and ‘review’. These terms were codified for the first time a century ago, in the UK Copyright Act, 1911, when carbon paper was still the common everyday copying technology, mimeograph was not yet widely available, and xerography (let alone digital copying) were not even imagined. These terms were also codified when learning took place primarily in the classroom, the lecture hall or the library carrel, and when literacy levels were considerably lower than they are today. As digital technologies continue to evolve and disrupt existing ones, a question that will undoubtedly arise is how to interpret these terms in the new reality of ubiquitous and highly sophisticated devices interacting with each other, and which facilitate new modes and platforms of learning and discourse in a free knowledge-based society. 35. Needless to say, learning and education in all of their facets, including teaching, research,
studying, collaboration, criticism, review, along with acquisition and dissemination of knowledge have been radically transformed by technology to the point where there are no longer any clear boundaries between these activities. Nor are there any physical, geographic or temporal
restrictions on these activities. A student in a classroom using commonplace technology can be simultaneously listening to and even recording and transcribing a professor’s lecture, doing online research, writing a term paper, and collaborating with a colleague across the aisle or across the world. The distinction between “public” and “private”, which has always been elusive in copyright law, is now virtually meaningless for practical purposes in this context. 36. Technological changes that have already become an integral part of our digital lives will
also continue to blur the lines between ‘research’, ‘private’, ‘study’, ‘criticism’, ‘review, and ‘news reporting’ (if there ever were such clear lines). For example, as part of their assignments, the students participating in my intellectual property course this term will have to write a Wikipedia article on intellectual property law in Canada, or contribute to an existing one. These articles will be openly available to anyone around the world with an Internet connection, and could also be revised and modified by anyone. While such an assignment undoubtedly constitutes an act of learning, determining how neatly it fits into any of the particular purposes enumerated in Copyright Act seems futile. This is just one example of how the terms that were codified in the Copyright Act a century ago will have to be given meaning that is faithful to their ultimate purpose in the age of the smartphone, the cloud server, the blog and the wiki. Terms such as ‘research’, ‘criticism’, ‘study’, etc., which are still at the heart of Canadian legislation and likely to remain so for a very long time, must be freshly interpreted for today and tomorrow and not pushed back in meaning to a time when the carbon paper, or even the photocopier were the pinnacle of reproduction technology, the published printed book the apex of human knowledge, and the frontal lecture (with a blackboard behind) the main pedagogical method. 37. In addition to the broader goal that copyright law should develop in a way that serves the
public interest, CILP also has immediate interests in this case. As a scholarly research centre that constitutes part of one of Canada’s leading research universities, the outcome of this appeal will have a direct effect on the ability of CILP to conduct, foster and disseminate research. It will also directly affect the ability of the faculty members and students affiliated with it to study and investigate, to learn and to teach, to access scholarly and other types of works and use and reuse them in a fair and reasonable manner. It will impede their ability to acquire and develop the skills of research and critical analysis, and to engage in constant and free scholarly and critical discussion as participants in a free and democratic society. In other words, as an active
participant in the process of learning broadly understood, CILP has an interest that the “Encouragement of Learning”, recognized and embedded in the Statute of Anne, 1710,3 will continue to be the guiding light for its descendent, the current Copyright Act. 38. As a scholarly research centre, CILP constitutes a hub of academics, who are not only
users of works, but creators, authors, and owners of copyrights. Many academic authors have different interests and hold different values than those of other authors and publishers. As was recently noted by Judge Chin when he rejected the proposed settlement in the copyright class action brought by a group of authors and several publishers against Google in the United States, “Academic authors, almost by definition, are committed to maximizing access to knowledge. The [Authors] Guild and the [Association of American Publishers], by contrast, are institutionally committed to maximizing profits.” For similar reasons—different interests of different types of copyright owners—the Court of Appeals of the Second Circuit recently reversed another settlement reached in the aftermath of another copyright class action (In re Literary Works in Electronic Databases Copyright Litigation, --- F.3d ----, 2011 WL 3606725 (2nd Cir. 2011). Nevertheless, CILP has strong reasons to believe that the positions taken by the Respondents in this appeal (and several other proposed interveners in this appeal and participants in the SOCAN Previews case) will frequently purport to speak in the name of authors, writers and creators, as if they were all made from the same cast. Therefore, CILP may wish to highlight this divergence of interests among authors and copyright owners and bring a perspective of authors that may be different from that of others.
VI. OUTLINE OF PROPOSED SUBMISSIONS 39. I have read the Memorandum of Argument and can confirm that this outline is an
accurate reflection of the proposed submissions that CILP intends to make, should this Court grant CILP leave to intervene in this appeal. 40. CILP will support the Applicants insofar as they wish to overturn the decision below, but
Statute of Anne, An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, During the Times therein mentioned, 1710, 8 Anne, c.19.
will do so for further and different reasons, and from a different perspective. 41. I also affirm that whenever the Memorandum of Argument makes a reference to the
nature of research, teaching, and learning and critical discussion as these activities are pursued in educational institutions, and post-secondary institutions in particular, or to the effect of the decisions below on such activities and the pursuit of learning, these references are based and reflect my own experience as a researcher, teacher, and a former student. 42. If granted leave to intervene, CILP would not file any additional evidence or extraneous
material. CILP seeks to file a factum not exceeding 20 pages in length, given the unique perspective and depth that it would bring to its arguments. CILP would also seek leave to make oral submissions not exceeding 15 minutes. CILP would attempt to assist this Court with respect to the legal principles at issue in this case, and will take no position on the facts or the record, except to the extent that reference to the facts is necessary to contextualize the legal issues. CILP would not seek costs and would ask that no costs be awarded against it.
VII. SUMMARY 43. CILP believes that is request for an extension of time to file its motion for leave to
intervene will not prejudice or inconvenience any party or proposed intervener herein. It has been submitted as quickly as possible under the circumstances. Indeed, if this request is granted and leave to intervene is permitted, the Court may ultimately save some time because CILP’s submissions will assist in demonstrating that certain arguments are simply unnecessary in this instance. 44. As a specialized scholarly centre for the study of law and its relationship to technology,
and as an organization with particular expertise on copyright law, CILP has an interest in this appeal and will present arguments that are useful and different from those of the parties. CILP will draw on its expertise to provide a broader and substantive analysis of the issues that are before this Honourable Court. 45. In my view, therefore, CILP can make a contribution to this appeal that will be useful to
this Court in determining the questions before it.
Granting leave to intervene to CILP will not prejudice any party. CILP will take the
record as it finds it and will not supplement the record. CILP will seek to avoid duplication of submissions, and will abide by any schedule set by the Court. CILP seeks no costs in the proposed intervention and asks that none be awarded against it. 47. For these reasons, CILP respectfully requests that it be granted an extension of time to
file its motion for leave to intervene and that it be granted leave to intervene to file a factum not exceeding 20 pages and to present oral argument not exceeding 15 minutes at the hearing of this appeal. CILP would not seek costs and would ask that no costs be awarded against it. 48. I affirm this affidavit in support of the Centre for Innovation Law and Policy’s motion for
an extension of time to file this motion for leave to intervene and for leave to intervene, and for no other or improper purpose.
Affirmed before me at the City of Toronto, ) in the Province of Ontario, ) this 20th day of September, 2011 ) ) ) ___________________________________ ____________________________________) ARIEL KATZ A Commissioner, etc.
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