Motion Record Volume 1

File No.
35918
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
BETWEEN:
CANADIAN BROADCASTING CORPORATION/

SOCIT RADIO-CANADA
Appellant
(Applicant)
- and
SODRAC 2003 INC. and SOCIETY FOR REPRODUCTION RIGHTS OF

AUTHORS,COMPOSERS AND PUBLISHERS IN CANADA(SODRAC)INC.
Respondents
(Respondents)
-and-
CENTRE FOR INTELLECTUAL PROPERTY POLICY AND ARIEL KATZ
Proposed Interveners
MOTION RECORD OF THE PROPOSED INTERVENERS

(MOTION FOR LEAVE TO INTERVENE
Pursuant to Rules 47,55,56,57 and 59 of the Rules ofthe Supreme Court ofCanada)
VOLUME I
Howard P. Knopf
Macera & Jarzyna, LLP
1200 - 427 Laurier Ave. W.,
Ottawa, ON,K1R 7Y2
Phone: 613-238-8173
Fax:613-235-2508
howard.knopf@macerajarzyna.com
Counsel for the Proposed Interveners,
Centre for Intellectual Property Policy and Ariel Katz
TO:
THE REGISTRAR
COPY TO:
Counsel for the Appellants,

CANADIAN BROADCASTING
CORPORATION / SOCIT
RADIO-CANADA
Agent for the Appellants,

CORPORATION / SOCIT
RADIO-CANADA
Marek Nitoslawski
Joanie Lapalme
Fasken Martineau DuMoulin LLP Suite
3700
800 Victoria Square
Montral, Qubec H4Z 1E9
Gerald Kerr-Wilson
Fasken Martineau DuMoulin LLP
Suite 1300
55 Metcalfe Street
Ottawa, Ontario K1P 6L5
Tel.: 514 397-4335 (Mr. Nitoslawski)

Tel.: 514 397-5294 (Ms. Lapalme) Fax:
514 397-7600
mnitoslawski@fasken.com
jlapalme@fasken.com
AND TO:
Tel.: 613 696-6884

Fax: 613 230-6423
jkerrwilson@fasken.com
Counsel for the Respondents,

SODRAC 2003 INC. and SOCIETY
FOR REPRODUCTION RIGHTS
OF AUTHORS, COMPOSERS AND
PUBLISHERS IN CANADA
(SODRAC) INC.
Agent for the Respondents,

OF AUTHORS, COMPOSERS
AND PUBLISHERS IN CANADA
(SODRAC) INC.
Colette Matteau
Matteau Poirier avocats Inc. Suite 210
353 Saint-Nicolas Street Montral,
Qubec H2Y 2P1
Frdrick Langlois
Deveau, Bourgeois, Gagn, Hbert &
associs, sencrl
Suite 8
867 Saint-Ren Blvd. West
Gatineau, Qubec J8T 7X6
Tel.: 514 281-0033

Fax: 514 284-9328
bureau@matteaupoirier.com
Tel.: 819 243-2616 ext. 224 Fax: 819

243-2641 flanglois@deveau.qc.ca
TABLE OF CONTENTS
Tab
Description
Page
NOTICE OF MOTION
AFFIDAVIT OF DAVID LAMETTI
AFFIDAVIT OF ARIEL KATZ
14
MEMORANDUM OF ARGUMENT
27
I.
MAIN ISSUES IN APPEAL
29
II.
FACTS
31
III.
STATEMENT OF QUESTIONS IN ISSUE
31
IV.
ARGUMENT
31
V.
SUBMISSIONS ON COSTS
37
VI.
ORDER SOUGHT
38
VII.
TABLE OF AUTHORITIES
39
VIII.
STATUTORY PROVISIONS
41
TAB 1
File No. 35918

BETWEEN:

SOCIT RADIO-CANADA
Appellant
(Applicant)
- and -

AUTHORS, COMPOSERS AND PUBLISHERS IN CANADA (SODRAC) INC.
Respondents
(Respondents)
- and -

NOTICE OF MOTION OF THE PROPOSED INTERVENERS
(MOTION FOR LEAVE TO INTERVENE
Pursuant to Rules 47, 55, 56, 57 and 59 of the Rules of the Supreme Court of Canada)
______________________________________________________________________________
Howard P. Knopf
Ottawa, ON, K1R 7Y2
Phone: 613-238-8173
Fax: 613-235-2508
Counsel for the Proposed Interveners
TO:
THE REGISTRAR
COPY TO:

CORPORATION / SOCIT
RADIO-CANADA

CORPORATION / SOCIT
RADIO-CANADA
Marek Nitoslawski
Joanie Lapalme
3700
800 Victoria Square
Gerald Kerr-Wilson
Suite 1300
55 Metcalfe Street

514 397-7600
jlapalme@fasken.com
AND TO:
Tel.: 613 696-6884

Fax: 613 230-6423

(SODRAC) INC.

(SODRAC) INC.
Colette Matteau
Qubec H2Y 2P1
Frdrick Langlois
associs, sencrl
Suite 8
Tel.: 514 281-0033

Fax: 514 284-9328
Tel.: 819 243-2616 ext. 224 Fax: 819

TAKE NOTICE that the Centre for Intellectual Property Policy (CIPP) and Professor Ariel
Katz (the Proposed Interveners) hereby apply to a judge of this Court, pursuant to Rules 47, 55,
56, 57 and 59 of the Rules of the Supreme Court of Canada, for an order granting the Proposed
Interveners leave to intervene in this appeal, to file a factum not to exceed 15 pages in length and
to make oral argument at the hearing of the appeal for not more than 15 minutes, and any further
or other order as this Court may deem appropriate.
AND FURTHER TAKE NOTICE that the following documentary evidence will be relied upon
in support of this motion:
1. The affidavit of David Lametti, Acting Director of CIPP, sworn January 18, 2015;
2. The affidavit of Ariel Katz, sworn January 18, 2015; and
3. Such further and other material as counsel may advise and this Court may permit.
AND FURTHER TAKE NOTICE that the motion shall be made on the following grounds:
I.
The Appeal
[1]
By order of this Court dated September 4, 2014, the Appellants were granted leave to
appeal from the judgment of the Federal Court of Appeal A-516-12; A-63-13; A-527-12, 2014
FCA 84, dated March 31, 2014.
[2]
The appeal relates to a decision of the Copyright Board of Canada (the Board) setting
out, in statutory arbitration proceedings pursuant to section 70.2 of the Copyright Act, the terms
of a licence that would permit the Appellant to do certain acts with respect to works within the
repertoire of the Respondents. One of the issues in the decision under appeal was whether the
approved licensing scheme could be imposed on the Appellant.
[3]
The appeal raises two main distinct but interrelated issues: (a) how the interpretative
principle of technological neutrality should apply to the facts of this particular case; and (b) the
nature of the proceedings before the Board with respect to the collective administration of
copyrights, the Boards mandate, the effect of its decisions, and whether Board-approved
licensing schemes can be imposed on unwilling users, for example when those users prefer to
obtain licences elsewhere, or believe that their activities require no licence at all.
[4]
The Proposed Interveners are satisfied that this Court will be fully apprised with respect
to the issue of technological neutrality, and they wish to make submissions that focus on the
second issue, namely, the question of mandatory Board-approved licensing schemes, or
mandatory tariffs.
[5]
While this appeal is concerned primarily with TV broadcasting, the legal questions that it
involves apply much more broadly, and this Courts decision could have an immediate impact on
the activities of many other users of various forms of copyrighted materials.
II.
The Proposed Interveners Have an Interest in the Issues Arising in This Appeal
[6]
For more than a decade, the CIPP has intensively pursued work on Canadian, American,
and European intellectual property law, comparative intellectual property law, international
intellectual property law, and international trade in relation to intellectual property law. At the
core of its mission, the CIPP brings the most up-to-date knowledge about intellectual property
law and innovation to assist governments, policy-makers, firms, and courts in Canada and
internationally. The pursuit of fair and balanced intellectual property systems has historically
informed, and continues to inform, the research and policy agenda of the CIPP.
[7]
Professor Ariel Katz holds the Innovation Chair, Electronic Commerce, at the Faculty of
Law, University of Toronto. He has extensive expertise and experience in issues relating to
intellectual property generally and copyright law in particular, competition law, Internet law, and
the various interfaces between these fields. He is a leading international authority on the
regulation of collective societies, and his work in the field has been cited by this Court, by the
Supreme Court of Israel, and has influenced policy makers from the European Union, to the
United States, to Australia.
[8]
The Proposed Interveners have demonstrated their interest in the pursuit of fair and
balanced intellectual property systems not only through their academic work, but also through
participation in various public policy and law making processes, including as interveners before
this Court and others.
[9]
Moreover, the outcome of this appeal may affect the Proposed Interveners not only in
their own professional capacities, but also as members of the broader academic community, as
teachers, as ordinary consumers, and authors. As academics and teachers, Professor Katz and the
CIPP members are concerned about the burdens that mandatory tariffs would impose on them,
their colleagues, and their students. As consumers, they are concerned that the layering of
gratuitous tariffs and fees would add to the cost of producing and delivering content to
consumers, reduce the supply of content, or discourage the adoption of more efficient delivery
technologies, and further, that a holding affirming the decision below could open the gate to
numerous tariffs that could be imposed on consumers directly. As authors, they are worried that
if collective societies can impose themselves and their business model on readers as a matter of
law, this would thwart the development of alternative business models that are more amenable to
the interests of authors such as themselves.
III.
The Proposed Interveners Submissions will be Useful and Different from those of
the Other Parties

[10]
The CIPP is a nationally and internationally recognized research institute of the Faculty
of Law, McGill University. The CIPP is also a non-profit, public interest entity that is completely
independent of any commercial interests. Sitting within McGill Universitys Faculty of Law with its
world-recognized expertise in comparative law, it also brings a critical understanding of how and on
what basis to understand Canadian copyright. As a leading independent think tank on comparative
copyright law and innovation policy, the CIPP will provide the Court with a valuable and unique
perspective on the issues arising in this appeal.
[11]
The Proposed Interveners are uniquely positioned to highlight the public interest at stake
in the appeal due to their non-profit nature, their commitment to showcasing the Canadian
copyright system as an exemplar to other countries, and their extensive expertise in Canadian,
comparative, and international intellectual property law, as well as innovation policy.
[12]
While this appeal is concerned primarily with TV broadcasting, the legal questions that
arise in it impact much more broadly. There is no similar independent institution with a mission
similar to that of the CIPP likely to intervene in and address the foundational principles
underlying the disposition of the appeal, in particular, with respect to the question of whether
Board-approved licensing scheme could become mandatory on users (the mandatory tariff
issue). There is no other party or proposed intervener who has studied the collective
administration of copyrights as deeply, and who could assist this Court in providing as broad and
deep legal, historical, and economic perspectives on the current issues as Professor Katz.
[13]
Moreover, based on the Appellant factums brief treatment of the mandatory tariff
issue and its focus on technological neutrality and the legal status of broadcast incidental
copies, the Proposed Interveners anticipate that the Respondents and other potential interveners
will do the same.
[14]
The Proposed Interveners believe that the Appellant did not raise all the necessary
arguments with respect to the issue of mandatory tariffs, and has failed to mention relevant,
and potentially dispositive case law. Nor have the Appellant arguments on this issue adequately
emphasized the gravity of the FCAs error and the consequences of leaving its decision
undisturbed.
[15]
The Proposed Interveners also have some reservations about some details in the
Appellants submissions on this issue. Therefore, to provide this Court a fuller perspective of the
issues and their implications, the CIPP and Professor Katz wish to focus on the question of
whether Board-approved licensing schemes can be imposed on users.
[16]
They plan to present to this Court relevant case law on this question that the Appellant
did not cite, and make other submissions, some of which supplement those of the Appellant,
while others will be different, or even in disagreement with the Appellant (such as with respect
to the proposed solution of nominal royalties).
[17]
Those submissions will also be useful because they will allow this Court be fully apprised
of the issues surrounding the mandatory tariff theory, including all relevant case law that was
not discussed below or mentioned in the Appellants factum.
IV.
The Submissions that the CIPP and Professor Katz Would Make if Permitted:
[18]
Should this Court grant us leave to intervene in this appeal, CIPP and professor Katz will
focus on the nature of the proceedings before the Copyright Board in cases concerning licensing
scheme with respect to copyrights under sections 3, 15, 18, and 21 of the Act, and the legal effect
of the Boards decisions. They will submit that in accepting the view that Boardapproved licensing schemes can be imposed on users, the FCA has made a series of
serious reversible errors.
[19]
Should leave to intervene be granted, the CIPP and Professor Katz intend to make
submissions that:
The FCA ignored relevant provisions in the Act and failed to consider the provisions that
it had relied on in the context of their wider statutory scheme;
That the FCA misconstrued the Act by failing to give some legal terms and phrases their
ordinary and longstanding meaning, and confused them with other terms and phrases that
bear different ordinary and longstanding meaning;
That the FCA failed to consider relevant and potentially dispositive case law from this
Court and the lower courts;
That the FCA misconstrued the intent of Parliament and interpreted the Act in a way that
subverts that intent;
That the proper construction of the Act, in light of the case law, and supported by its
legislative history, compels a different conclusion from the one arrived at below.
[20]
If granted leave to intervene, the Proposed Interveners will also be able to assist this
Court by situating the concerns about practices that result in layered fees and double dipping in
a broader historical context. They will show how the concerns about similar practices motivated
the regulatory oversight of collective societies in Canada as early as the 1930s, and how similar
concerns in the United States resulted in a series of antitrust cases that imposed limitations on the
powers of collective societies.
[21]
The Proposed Interveners will also submit that if Board-approved licensing schemes
could be imposed on users, this would only encourage the artificial division and subdivision of
copyrights for the purpose of double or multiple dipping by copyright holders, and require
ongoing intervention by the courts to mitigate the inevitable abuses.
[22]
The Proposed Interveners will respectfully make those proposed submissions from a wide
public policy perspective that takes advantage of our unique scholarly expertise in these issues.
Thus, the Proposed Interveners will show how considering the broader scheme would support a
different outcome. We will present these cases before this Court and argue why they compel a
different interpretation .
The proposed intervention will not cause delay or prejudice to the parties. The CIPP and
Professor Katz will not seek costs, and asks that they not be liable for costs to any other party
should leave be granted.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 18th day of January 2015.
Howard P. Knopf
Macera & J arzyna, LLP
1200-427 Laurier Ave. W. ,
Ottawa, ON KlR 7Y2
Phone:613-238-8173
Fax: 613-235-2508
Counsel for the Proposed Interveners
TAB 2
File No. 35918

BETWEEN:
SOCIETE RADIO-CANADA
Appellant
(Applicant)

Respondents
(Respondents)
- and CENTRE FOR INTELLECTUAL PROPERTY POLICY ("CIPP")
FACULTY OF LAW, McGILL UNIVERSITY and ARIEL KATZ
AFFIDAVIT OF DAVID LAMETTI

Pursuant to Rules 6, 47 and 55 of the Rules of the Supreme Court of Canada)
I, DAVID LAMETTI, of the City of Montreal in the Province of Quebec, AFFIRM AS

FOLLOWS:
[I]
This affidavit is in support of the joint motion by the Centre for Intellectual Property Policy
at the Faculty of Law, McGill University (CIPP) and Professor Ariel Katz to grant leave to
intervene in this appeal.
[2]
I am a tenured Associate Professor at the Faculty of Law of McGill University, where I am
also the co-founder and current Acting Director McGill's Centre for Intellectual Property Policy
(CIPP). I am also a member of the Bars of Ontario and Qubec.
[3]
Except as otherwise indicated, I have personal knowledge of the matters to which I depose
in this Affidavit. Where I lack such personal knowledge, I have indicated the source of my
information and I verily believe such information to be true.
The CIPP has a direct and compelling interest in the issues on appeal
[4]
The CIPP is an internationally recognized, independent, not-for-profit think tank sitting
within McGill University's Faculty of Law. In addition to full-time and tenured colleagues at the
Associate and Full Professor rank in McGill's Faculty of Law, the CIPP includes Members and
research collaborators from the rest of Qubec and Canada, and from other countries across the
world, as well as post-graduate researchers, graduate students and students.
[5]
The CIPP's mission is to advance research and policy formation of intellectual property
and innovation systems. To achieve this mission the CIPP focuses on three interconnected priority
areas: (i) The CIPP carries out interdisciplinary research to understand the role of intellectual
property policies and rules in contributing to creativity and innovation. In particular, the CIPP
examines if and how intellectual property contributes to broad social goals such as increased
health, cultural development, access to information and economic growth; (ii) The CIPP enhances
understanding of intellectual property and innovation systems among students at McGill
University at the undergraduate, graduate and executive level, as well as within the community;
(iii) The CIPP disseminates its research through workshops and conferences.
2
[6]
intellectual property law, and international trade in relation to intellectual property law. At the core
of its mission, the CIPP brings the most up-to-date knowledge about intellectual property law and
innovation to assist governments, policy-makers, firms, and courts in Canada and internationally.
[7]
On account of its expertise, the CIPP, through its Members, has been invited to present
testimony to Committees of the House of Commons such as the Standing Committee on Industry,
Science and Agriculture (2012), the Standing Committee on Agriculture and Agri-Food (2011),
and the Legislative Committee on Bill C-32 (2010). Internationally, its Members have been invited
to make formal presentations before the United States Secretary of Health's Advisory Committee
on Genetics, Health, and Society and the World Health Organization. The CIPP and its Members
have also provided research and policy advice to other organizations, such as the World Intellectual
Property Organization, and government agencies in Canada and abroad.
[8]
Through its Members, the CIPP submitted amicus curiae briefs on the patentability of
human genes in the AMP v Myriad Genetics 569 US
(2013) case before the Supreme Court of
the United States and the United States Court of Appeals for the Federal Circuit. Recently, the
CIPP participated as an intervener in the appeal before this Court in Apotex v. Sanofi-Aventis et.
al. (the "Plavix" case; Case No. 35562). The CIPP was granted leave to appeal in that case and
was also granted time for oral argument; however, the case was settled on the eve of the hearing.
[9]
The pursuit of fair and balanced intellectual property systems has historically informed,
and continues to inform, the research, teaching and policy agenda of the CIPP. It is reflected in the
past and current research and scholarship of all CIPP Members and research collaborators. For
example, the CIPP's Abuse of Rights of Intellectual Property Law research project has been
ongoing since 2007 and addresses the dangers involved in both the distortion of intellectual
property rights from their original spirit and their application in a manner contrary to their intended
function. This was also true, with analogous regards to patents, in the recent intervention in the
Plavix case.
[10]
Among other reasons, the CIPP has become interested in this appeal, because it is
concerned that some of the practices of collective societies, such as those which are the subject of
this appeal, demonstrate the abuse of intellectual property rights, and it is concerned that rather
3
than curbing such abuses, the decisions below of Copyright Board and the Federal Court of Appeal
might encourage them.
[11] The CIPP has been familiar with Professor Katz's work on collective administration of
copyrights, and the important contribution of him and his work to public policy, and is pleased to
join forces with him in this joint motion. The CIPP shares Professor Katz's concerns, as he
describes them in his affidavit, and wholeheartedly agrees with his assessment of the value of the
assistance that a joint submission by him and the CIPP could bring to this Court.
The CIPP offers a different and unique perspective
[12]
There is no similar independent institution with a mission similar to that of the CIPP likely
to intervene in and address the foundational principles underlying the disposition of the appeal, in
particular, with respect to the question of whether Board-approved licensing scheme could become
mandatory for and imposed upon users.
[13]
The CIPP will suffer prejudice if leave to intervene is not granted.
[14]
Should the CIPP's arguments not be heard, the Court would forego the opportunity to fully
hear and appreciate the public interest at stake, as there is no other independent organization with
sufficient expertise to raise such issues in a comprehensive manner. Protecting the public interest
is at the very core of the Centre's mission; the CIPP will therefore unavoidably suffer prejudice if
leave to intervene were not granted.
[15]
Even more directly, as an academic institution involved in research and teaching in service
of the public interest, the decision below, if upheld, could negatively affect CIPP and its Members,
impairing their ability to pursue and fulfil their scholarly and educational mandate, as Professor
Katz aptly describes.
[16]
I have read the Memorandum of Argument and can confirm that it contains an accurate
reflection of the proposed submissions that the CIPP and Professor Katz intend to make, should
this Court grant us leave to intervene in this appeal.
[17]
Should this joint motion for leave to intervene be granted, CIPP does not intend to seek
costs and asks that it not have costs awarded against it.
4
I make this Affidavit in support of the joint Motion of CIPP and Professor Katz for Leave to
Intervene in this appeal and for no improper purpose.
Affirmed before me at the City of Montreal, )

in the Province of Quebec,
this 18th day of January, 2015
) DAVID LAMETTI
A Commissioner, etc.
Geoavi eL ve
au
CA.. aj-elae
TAB 3
File No. 35918

BETWEEN:

SOCIT RADIO-CANADA
Appellant
(Applicant)
- and -

Respondents
(Respondents)
- and -

AFFIDAVIT OF ARIEL KATZ

(Pursuant to Rules 47 and 55 of the Rules of the Supreme Court of Canada)
15
I, ARIEL KATZ, of the City of Toronto in the Province of Ontario, AFFIRM AS FOLLOWS:
I.
Introduction
[1]
This affidavit is in support of the joint motion by the Centre for Intellectual Property
Policy at the Faculty of Law, McGill University (CIPP) and myself to grant leave to intervene in
this appeal.
[2]
This affidavit outlines my expertise and interest in the issues arising in this appeal.
Where facts are based on information obtained from others, I believe that information to be true.
I am making this affidavit and applying for leave to intervene in my own personal capacity, and
not on the behalf of my employer or any organization that I am affiliated with.
[3]
One of the issues in the decision under appeal and in the Appellants factum is whether
collective societies can, by filing proposed tariffs, or initiating statutory arbitration proceedings
pursuant to s. 70.2 of the Copyright Act, impose an obligation to pay the royalties that the
Copyright Board approves on unwilling users, including those who can and wish to comply with
copyright law through other more efficient means than dealing with a collective. The Federal
Court of Appeal (FCA) seems to have concluded that the answer to this question is yes.
[4]
The question of the mandatory tariff has arisen not only in this case, but also in other
pending cases before the Copyright Board and the courts. The mandatory tariff theory entails
that once the Board approves a collective societys licensing scheme, any single unauthorized
use of a work from the collective societys repertoire would trigger an obligation on that user to
pay the Board-approved royalties and comply with their related terms and conditions.
[5]
The answer to the question of whether Board-approved licensing schemes are mandatory
as a matter of law affects different users in different ways. For example, when users seek
licenses, and believe Board-approved licences offered by collective societies provide a costeffective way of obtaining such licences, the question of whether those tariffs could be imposed
on users even if they were not interested is of little practical import. However, when users
believe that many of their activities do not require the copyright owners consent at all (e.g. they
would constitute fair dealing), or when they can obtain licences elsewhere on more competitive
16
terms than those that collective societies offer, the question of whether Board-approved tariffs
could be imposed on users is of utmost importance.
[6]
In the case of a university, for example, the mandatory tariff theory would entail that,
despite all efforts to comply with its copyright obligations without dealing with a monopolistic
collective society (e.g. obtaining licences directly from publishers or other market-based
intermediaries, relying on open access licensing models, and implementing internal fair
dealing policies), one single unauthorized reproduction of one work from the repertoire of the
collective society could nonetheless trigger retroactive and prospective liability of millions
dollars. This liability would compound the millions of dollars that the university already pays for
acquisitions, subscriptions, and access to licensed digital databases.
[7]
I agree with the Appellant that the Board should not have imposed on it an obligation to
pay royalties, and that the FCA erred in declining to set aside the Boards ruling, but I would
reach this conclusion from a different perspective and on the basis of additional and different
reasons.
[8]
The Appellant disagrees with the FCAs decision, but its factum deals with the question
of mandatory tariffs mainly from its own perspective and from a practical point of view, and
fails to mention relevant case law and relevant statutory provisions. Moreover, some of the
Appellants submissions on this point might also be understood as agreeing that, in principle,
such obligations could be imposed on users, provided that the royalties are reasonably structured
or calculated.
[9]
The FCAs brief discussion of the effect of Board-approved licences suggests that the
question might not have been dealt with adequately before it. Nevertheless, this is an issue of
pressing importance to all users of copyrighted works (as well as to copyright owners). It is now
before this Court, and I believe that it would be appropriate for this Court to deal with it. I also
believe that this Court should be fully apprised of the issues surrounding the mandatory tariff
theory, including all the relevant case law, so that it would be able to decide whether to reverse
the FCAs decision or uphold it after it has been presented with all the relevant arguments and
authorities, and not only from the Appellants perspective.
[10]
I believe that CIPP and I can assist this Court in presenting a fuller picture of this issue
than the one that is currently before it.
17
II.
About the Deponent
[11]
I am a tenured Associate Professor at the Faculty of Law University of Toronto where I
also hold the Innovation Chair in Electronic Commerce.

[12]
I also served as Director of the Center for Innovation Law and Policy, at the Faculty of
Law, University of Toronto (CILP) between 2009 and 2012. CILP was an intervener before this
Court in the recent Alberta (Education) v. Access Copyright case,1 and it appears that the
arguments made in that factum were directly influential on the majority opinion in that case.
[13]
I am also one of the founding members of Authors Alliance, an organization that
promotes authorship for the public good by supporting authors who write to be read, and who
embrace the unprecedented potential digital networks have for the creation and distribution of
knowledge and culture.2
[14]
My formal qualifications are as follows: LLB (Hebrew University, Jerusalem) 1997,
LLM (Hebrew University, Jerusalem) (magna cum lauda) 2001, SJD (University of Toronto)
2005 (Hartle Award for Outstanding Graduate Scholarship).
[15]
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. I also regularly teach courses on these topics at the Faculty of Law, University of Toronto.
[16]
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 it often includes an
international and comparative outlook. Last year I received a 5-year research grant from the
Social Sciences and Humanities Research Council of Canada (SSHRC) to pursue further
research in this area.
1
2
Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright) (2012), 2 SCR 345 (SCC).
About Us | Authors Alliance, online <http://www.authorsalliance.org/about/ - mission>.
18
[17]
My work on collective administration of copyrights was cited by this Court,3 by the
Supreme Court of Israel,4 and by the Australian Law Reform Commission.5 My work has
influenced reform recommendations made by the European Commission,6 and I was also invited
last year by the U.S. Copyright Office to discuss extended collective licensing in a Roundtable
on Orphan Works and Mass Digitization.
[18]
My interest in these issues, and my specific expertise with respect to collective
administration of copyrights, has also prompted me to become involved as an objector in the

proceedings before the Copyright Board of Canada, with respect to a Proposed Tariff for PostSecondary Institutions that Access Copyright filed with the Board, and later, to file, on behalf of
CILP, an Intervener Factum with this Court in Alberta (Education) v. Access Copyright.7 I have
also helped formulate, and signed, several amicus briefs filed with the U.S. Supreme Court.
[19]
This appeal raises issues that are directly related not only to my scholarly interests, but
that also affect me personally. They affect me as a researcher and a teacher, because I cherish my
users rights and rely on them extensively. I was very pleased when my university concluded last
year that a licence from Access Copyright would often allow it to do less than what the licences
that it has negotiated directly with most major publishers allow it to do, and less than what even
fair dealing and other exceptions and limitations in the Act might allow it to do without any
licence at all.8 I am concerned, however, that if the decision below remains undisturbed, it could
be relied on to compel my university to comply with the terms of Board-approved tariffs that not
only require it to pay unnecessary royalties, but also subject it, including each and every
3
Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, [2012] 2
SCR 34 at para 11.
4
CA 5365/11 ACUM - Association of Composers and Music Publishers in Israel v General Director of the Antitrust
Authority (3 September 2013) (Supreme Court of Israel) (in Hebrew). Online:
<http://elyon1.court.gov.il/files/11/650/053/a09/11053650.a09.htm>
5
Australian Law Reform Commission Australian Law Reform Commission, Copyright and the Digital Economy
(2014). Online:
<http://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.pdf>
6
Tilman Luder, The Next Ten Years in EU Copyright: Making Markets Work (2007) 18 Fordham Intell Prop
Media & Ent LJ 1, at 51.
7
Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), supra note 1.
8
See Letter from Cheryl Misak, Vice Presidend and Provost, Univserity of Toronto, to Roanie Levy, Access
Copyright (6 June 2013), online <http://arielkatz.org/wp-content/uploads/2013/06/Access-Copyright-U-of-T-Misakto-Levy-June-7-20132.pdf>; University of Torontos License with Access Copyright Set to End (11 December
2013), online <http://media.utoronto.ca/media-releases/university-of-torontos-license-with-access-copyright-set-toend/>.
19
instructor, student, and staff member, to extremely intrusive and onerous reporting and auditing
requirements, including the examination of the electronic communications of members of the
university community. This would effectively constitute a massive and unprecedented
surveillance apparatus that threatens the core values of the academic mission, and, together with
other terms of those tariffs, render the notion of users rights, recognized by this Court as an
integral part of the Copyright Act, meaningless.
[20]
The issues that this appeal raises also affect me as an author and a copyright owner who
has chosen not to affiliate with any of the existing collective societies operating in Canada.
While I am mindful that the licensing models that some of the existing collective societies offer
may serve the interests of some copyright owners, they do not necessarily serve my interests as
an author and a copyright owner. While the goals of some copyright owners might be advanced
by imposing significant restrictions on how works can be used, in order to maximize the
collection of royalties, the interests of other authors, such as myself, are advanced through
increased access with limited use restrictions. Nevertheless, if collective societies can impose
themselves and their business model on readers as a matter of law, this imperil the development
of alternative business models that are more amenable to the interests of authors such as myself.
[21]
The issues that this appeal raises also affect me personally as a consumer. First, because
the layering of gratuitous tariffs and fees adds to the cost of producing and delivering content to
consumers, reduces the supply of content, and discourages the adoption of more efficient
delivery technologies. Second, because if collective societies can indeed file proposed tariffs
with the Board and then impose them on users, nothing prevents them from proposing tariffs that
would apply not only to commercial or institutional users, but also to ordinary consumers. It
could open the door for collective societies to rely on Board-approved tariffs and threatens
consumers into paying royalties on the basis of unproven claims that their acts might infringe
collective societies or their members copyrights.
III.
The Main Issues in This Appeal
[22]
20
copyrights, the Boards mandate, and the legal effect of its decisions.
[23]
More specifically, this appeal raises the question of whether a copyright owners
exclusive right to reproduce a work includes broadcast incidental copies in circumstances such
as those existing in this case, and the question of whether users who do not wish to obtain a
licence from a collective society must nonetheless pay the royalties and comply with their related
terms and conditions when the Board fixes them.
[24]
With respect to the first question, the FCA held that under the present circumstances the
making of broadcast incidental copies would constitute infringement of the copyright in the
relevant works if made without the copyright owners consent.
[25]
With respect to the second question, the FCA, with little discussion, adopted the view
that users can be compelled to pay the royalties and comply with their related terms and
conditions even if they do not wish to obtain a licence from the collective society. If granted
leave to intervene, CIPP and I plan to focus on this second question.
IV.
Reasons for Seeking Leave to Intervene
[26]
In recent years I have become aware that the Board and many collective societies believe
that once the Board certifies tariffs (or fixes the royalties in statutory arbitration proceedings
pursuant to s. 70.2 of the Copyright Act) those tariffs and the payment of the royalties specified
therein, become mandatory on users. In their view, when the Board sets those royalties, any
single unauthorized use of any work from the collectives repertoire would obligate the user to
comply with the tariff and entitle the collective society to collect the specified royalties and sue
for their recovery, regardless of whether the user wishes to obtain a licence from the collective.
Under this view, the Board proceedings constitute an enforcement mechanism, resulting in an
approved tariff that can be imposed on users who do not wish to obtain a licence from the
collective society.9 I will refer to this view as the mandatory tariff theory.
Access Copyright Educational Institutions Tariff (2010-2015), Interim Decision of the Board (29 May 2013), at
paras 8, 11. Online: <http://www.cb-cda.gc.ca/decisions/2013/access2010-2015-29-05-2013.pdf>
21
[27]
I say that this is the Boards view, and not that the Board held that approved tariffs
have such an effect, because as far as I can tell the Board has never been explicitly asked to rule
on this issue. When it has endorsed this theory, it did so on its own initiative and without ever
asking the parties to present submissions on it.10 Even if the Board were asked to rule on this
question, its ruling would necessarily be obiter dictum. Even if approved tariffs could be
imposed on users who fail to pay the specified royalties, proceedings to recover such payments
can only be brought before a court of competent jurisdiction, not before the Board.11
[28]
I have also learned, mainly through conversations with decision-makers in various
institutions, as well as with several experienced counsel, that despite the extraordinary
consequences of the mandatory tariff theory, many users have tended to protest it very weakly,
if at all. This is notwithstanding the fact that this view is inconsistent with the jurisprudence of
this Court and lower courts (at least until the decision of the FCA in the present case).
[29]
Moreover, I have witnessed several cases where, under the threat of a mandatory tariff,
users have been maneuvered and effectively coerced into entering licence agreements with
collective societies, not because those users believed licences were necessary, and the collective
society offered the most cost effective way of securing them, but because they had been advised
that if they did not sign a licence agreement with the collective society they could be required to
pay substantially higher amounts in the form of retroactive royalty payments that would be
imposed on them pursuant to Board-approved tariffs.
[30]
The threat of mandatory tariffs has also compelled users to participate in lengthy and
expensive Copyright Board proceedings (and the almost-inevitable judicial review proceedings),
not because they are necessarily interested in obtaining licences from collective societies and
want to ensure the reasonableness of their terms, but because they want to minimize the
magnitude and scope of the obligations that could be imposed on them.
10
In fact, recognizing the pressing importance of this issue for a wide range of cases, in November 2013 I requested
the Copyright Board to refer this question to the Federal Court of Appeal for determination pursuant to sections
18.3(1) and 28(2) of the Federal Courts Act, see Ariel Katz, Access Copyright Post-Secondary Tariff 2011-2013:
Request for Reference to the Federal Court of Appeal (6 November 2013), online
<https://www.scribd.com/doc/182209272/ReferenceApplicationFinal-Signed>. Unfortunately, the Board denied my
request, mainly on the basis that determining the effect of its decision is not strictly necessary for the proceedings
before it, see Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013), Ruling of the Board
(9 December 2013), online <http://www.cb-cda.gc.ca/avis-notice/active/2013/access2-09122013.pdf>.
11
See e.g., Copyright Act, ss. 68.2(1), 70.4.
22
[31]
To emphasize, those users are forced to participate in recurring lengthy judicial
proceedings, spend hundreds of thousands of dollars on legal fees and expert testimonies,
respond to intrusive interrogatories, but not to defend against allegations of copyright
infringement. Rather, users incur those costs simply to minimize the risk of being liable to pay
sums that might exceed the amounts that they could be held liable to pay even if they had
infringed some copyright holders copyright.
[32]
Unfortunately, very few users, even large and reasonably funded organizations, can
afford effective participation in those proceedings. For example, in the case of Access
Copyrights proposed higher education tariff, the Association of Universities and Colleges of
Canada (AUCC) and the Association of Canadian Community Colleges (ACCC) have
withdrawn from the proceedings, which ultimately prompted other objectors such as myself and
the Canadian Association of University Teachers and the Canadian Federation of Students to
conclude that continued participation in those proceedings would be counterproductive.12
[33]
These observations have prompted me to study this question more deeply, and recently I
completed a draft of a research paper on this point.13 I have concluded that the mandatory tariff
theory is based on a deeply flawed interpretation of the Copyright Act and runs afoul the Act
itself and established case law. In my view, it also contradicts important and well-understood
first principles, subverts the intent of Parliament, and leads to absurd results. I believe that I
would be able to assist the Court in providing this perspective.
[34]
The view that Board-approved licensing schemes can be imposed on users has not been
limited to this appeal. The issue has arisen in this and other previous and pending cases, and will
likely continue to arise in other proceedings.14 For example, it appears to be the basis of an
12
Howard Knopf, EXCESS COPYRIGHT: Update on Access Copyrights Proposed Educational Tariffs at the
Copyright Board, online <http://excesscopyright.blogspot.ca/2014/01/update-on-access-copyrightsproposed.html>.
13
A working-paper version of this paper is available online, see Ariel Katz, Spectre: Canadian Copyright and the
Mandatory Tariff, online <http://dx.doi.org/10.2139/ssrn.2544721>.
14
Recognizing the importance of this issue for a wide range of cases, in November 2013 I had requested the
Copyright Board to refer this question to the Federal Court of Appeal for determination pursuant to sections 18.3(1)
and 28(2) of the Federal Courts Act, see Ariel Katz, Access Copyright Post-Secondary Tariff 2011-2013: Request
for Reference to the Federal Court of Appeal (6 November 2013), online
<https://www.scribd.com/doc/182209272/ReferenceApplicationFinal-Signed>. Unfortunately, the Board denied my
request, see Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013), Ruling of the Board (9
December 2013), online <http://www.cb-cda.gc.ca/avis-notice/active/2013/access2-09122013.pdf>.
23
action that Access Copyright has commenced against York University in April 2013, in response
to the Universitys conclusion that it could comply with its obligations under the Act without a
licence from Access Copyright.15
[35]
With very little discussion, the FCA seems to have effectively endorsed the mandatory
tariff theory, and as far as I can tell, not only this is the first judicial endorsement of that theory,
but also it is inconsistent with well-established jurisprudence of this Court and the lower courts.
Nevertheless, if the FCAs decision remains undisturbed, collective societies would surely rely
on it in the several pending cases and in future ones. In any event, the uncertainty that currently
surrounds this issue might continue to push some users into paying collective societies royalties
even when those payments may not required. It is therefore imperative that this Court correct the
errors the FCA has made in the present case so that the FCAs holding and terse reasoning would
not determine the outcomes of other cases.
[36]
Even if this Court believes that this case might not present the best opportunity to
determine the correctness of the mandatory tariff theory, it is still essential that it would not
inadvertently affirm the decision below without being fully apprised of its consequences.
[37]
To illustrate what is at stake for a university such as the one where I am employed, if the
mandatory tariff theory holds, notwithstanding the universitys good faith efforts to ensure
compliance with the law, and irrespective of the millions of dollars that it already pays for
licences that it obtains from publishers (and which allow it to use the same works that Access
Copyright claims to licence), and regardless of the rulings of this Court on fair dealing
specifically and the purpose of copyright law more generally, and the recent amendments
enacted by Parliament, a single unauthorized reproduction, which might after the fact be held to
exceed the scope of fair dealing, could obligate the university to pay Access Copyright millions
of dollars annually and retroactively. The retroactive liability issue is potentially greatly
15
Statement of Claim: Access Copyright v York University (Court File T-578-13) (8 April 2013), online
<http://www.scribd.com/doc/134926954/AC-v-York-Statment-of-Claim-T-578-13-Doc1>.
24
exacerbated by the Copyright Boards notoriously long delays in holding hearings and rendering
decisions.16
[38]
I firmly believe that the Act does not support such an outcome, and that Parliament could
not have intended to bring it about. Yet, this is the view that collective societies promote, that the
Board on its own motion has endorsed, and which the decision below in this case, if not reversed,
could support.
[39]
I have read the Appellants factum, and while I support many of its conclusions, I believe
that it fails to address certain important arguments about the nature of the proceedings before the
Board and the effect on the Boards decisions, namely the issue of the mandatory tariff. I am
also concerned about some of the Appellants submissions, for example, its suggestion that even
if a licence could be imposed on it, it should only include nominal royalties. This suggestion
might provide a tempting pragmatic solution that could solve the Appellants immediate problem
in this appeal. I understand why a prudent Appellant might wish to raise this suggestion as an
alternative submission. Nevertheless, I am concerned that if accepted, this submission would still
entrench an erroneous interpretation of the Act, and confirm a misguided understanding of the
statutory scheme.
[40]
A nominal mandatory tariff might be a pragmatic outcome that some large institutional
users could tolerate, but it could still seriously and negatively affect many other users for years to
come. First, because such users would still have to incur the high costs of participating in the
Board proceedings to convince the Board that the tariff should be nominal. Second, because
those users might still be required to comply with onerous reporting, auditing, and monitoring
requirements.
V.
Outline of the Proposed Submissions
[41]
I have read the Memorandum of Argument and can confirm that it contains an accurate
reflection of the proposed submissions that the CIPP and I intend to make, should this Court
grant us leave to intervene in this appeal.
16
Howard Knopf, EXCESS COPYRIGHT: More on Recent and Current Developments at and Concerning the
Copyright Board of Canada, online <http://excesscopyright.blogspot.ca/2014/11/more-on-recent-and-currentdevelopments_28.html>.
25
VI.
Conclusion
[42]
The recent copyright decisions of this Court have been recognized in Canada and
internationally as landmarks in copyright law. This Courts holding in CCH that users rights are
an equally constitutive element of copyright law has been highly esteemed globally. This Courts
holding in ESA v SOCAN that the principle of technological neutrality compels an interpretation
that avoids imposing an additional layer of protections and fees based solely on the method of
delivery of the work to the end user, and preserves the traditional balance between authors and
users in the digital environment, has provided common sense to an area from which it has
frequently missing.
[43]
The question of whether Board-approved licensing schemes are mandatory might be
seen as an esoteric question, but it could prove to be the most important copyright question to
ever come before this Court. From a practical perspective, the answer to this question could
effectively determine whether users can truly exercise their rights under the Copyright Act or
whether they must nonetheless still deal with, be monitored by, and pay ever-increasing
gratuitous layers of tariff royalties to collective societies which, in all but name, amount to
penalties and forfeitures, which the law abhors.
[44]
Unless reversed, the decision under appeal could effectively result in a retrenchment of
users rights, and it threatens to turn users right into de facto loopholes once again, contrary to
what this Court cautioned against in CCH.
[45]
As a researcher, teacher, and consumer, I have an interest in this appeal and its outcome. I
share many of the Appellants concerns, but my perspective is different. I am also an author and
a copyright owner, although my interests and views diverge from those of the Respondents. As a
scholar who studies the law and its relationship to technology, with specific expertise in
copyright law, competition law, and the collective administration of copyrights, I can assist this
Court by presenting arguments that are useful and different from those of the parties. Together
with CIPP, we will draw on our joint expertise to provide a broader and more substantive
analysis of the issues that are before this Honourable Court.
[46]
Granting us leave to intervene will not prejudice any party. We will take the record as we
find it and will not supplement the record. We will seek to avoid duplication of submissions, and
will abide by any schedule set by the Court.
26
[4 7]
For these reasons, we respectfully request to be granted leave to intervene to file a factum
not exceeding 15 pages and to present oral argument not exceeding 15 minutes at the hearing of
this appeal. We are mindful that this might exceed the normal limits but respectfully suggest that
this would be justified in the circumstances, due to the importance of the arguments and the
many necessary references to jurisprudence of this Court. We would not seek costs and would
ask that no costs be awarded against us.
I affirm this affidavit in support of the joint motion by the Centre for Intellectual Property Policy
and myself 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 18h day of January, 2015
ARIEL KATZ
TAB 4
File No. 35918

BETWEEN:

SOCIT RADIO-CANADA
Appellant
(Applicant)
- and -

Respondents
(Respondents)
- and -

MEMORANDUM OF ARGUMENT OF THE PROPOSED INTERVENERS

(MOTION FOR LEAVE TO INERVENE
Pursuant to Rules 47, 55, 56, 57, and 59 of the Rules of the Supreme Court of Canada)
______________________________________________________________________________
Howard P. Knopf
Ottawa, ON, K1R 7Y2
Phone: 613-238-8173
Fax: 613-235-2508
Counsel for the Proposed Interveners, the Centre for Intellectual Property Policy and Ariel Katz
TO:
THE REGISTRAR
COPY TO:

CORPORATION / SOCIT
RADIO-CANADA

CORPORATION / SOCIT
RADIO-CANADA
Marek Nitoslawski
Joanie Lapalme
3700
800 Victoria Square
Gerald Kerr-Wilson
Suite 1300
55 Metcalfe Street

514 397-7600
jlapalme@fasken.com
AND TO:
Tel.: 613 696-6884

Fax: 613 230-6423

(SODRAC) INC.

(SODRAC) INC.
Colette Matteau
Qubec H2Y 2P1
Frdrick Langlois
associs, sencrl
Suite 8
Tel.: 514 281-0033

Fax: 514 284-9328
Tel.: 819 243-2616 ext. 224 Fax: 819

29
I.
[1]
MAIN ISSUES IN APPEAL
of a licence that would permit the Appellant to do certain acts with respect to works within the
repertoire of the Respondents.
[2]
copyrights, the Boards mandate, the effect of its decisions, and whether Board-approved
licensing schemes can be imposed on unwilling users, for example when those users prefer to
obtain licences elsewhere, or believe that their activities require no licence at all.
[3]
The Proposed Interveners are satisfied that this Court will be fully apprised with respect
to the issue of technological neutrality, and they wish to make submissions that focus on the
second issue, namely, the question of mandatory Board-approved licensing schemes, or
mandatory tariffs.
[4]
The question of the mandatory tariff has arisen not only in this case, but also in other
pending cases before the Copyright Board and the courts. This theory, promoted by collective
societies and endorsed in obiter dicta by the Board, entails that once the Board approves a
collective societys licensing scheme, any single unauthorized use of any work from the
collective societys repertoire would trigger an obligation to pay the Board-approved royalties
and comply with their related terms and conditions.1
[5]
For many users, the implications of the mandatory tariff could be staggering. In the
case of a university, for example, the mandatory tariff theory would entail that, despite all
efforts to comply with its copyright obligations without dealing with a monopolistic collective
society (e.g. obtaining licences directly from publishers or other market-based intermediaries,
relying on open access licensing models, and implementing internal fair dealing policies), one
Affidavit of Professor Ariel Katz, at paras 3, 27 [Katz, Affidavit].
30
single unauthorized reproduction of one work from the repertoire of the collective society could
nonetheless trigger retroactive and prospective liability of millions dollars. This liability would
compound the millions of dollars that the university already pays for acquisitions, subscriptions,
and access to licensed digital databases.2
[6]
The Proposed Interveners believe that the issue of mandatory tariffs might prove to be
the most important copyright question to ever come before this Court. The question might seem
esoteric, but from a practical perspective, it could effectively determine whether users can truly
exercise their rights under the Copyright Act or must they nonetheless still deal with, be
monitored by, and pay ever-increasing gratuitous layers of tariff royalties to collective
societiesroyalties that, in all but name, amount to forfeitures and penalties, and which the law
abhors.3
[7]
The notion of mandatory tariffs threatens to destroy the balance in Canadian copyright
law that this Court has insisted on entrenching in its modern jurisprudence. It could utterly and
completely gut the notion of large and liberal fair dealing users rights and effectively retrench
them into de facto loopholes, contrary to what this Court cautioned against in CCH.4
[8]
This decision below also threatens the goals of the statutory scheme for the oversight of
collective societies that Parliament had set up since the 1930s. The outcome of this appeal could
determine whether Parliaments purpose in setting up the regulatory framework to protect users
from potential monopoly abuse, while allowing copyright owners to efficiently manage and
administer different copyrights under the Act would be maintained,5 or whether copyright
collectives will be allowed to become instruments of oppression and extortion contra to the
raison dtre of the statutory scheme.6
[9]
In the decision below, the FCA, with little discussion, provided what seems to be the first
judicial endorsement of the mandatory tariff theory. The FCA failed to consider relevant case
2
Katz, Affidavit, at paras 5, 37.

Katz, Affidavit, at para 43; Affidavit of Professor David Lametti on behalf of the Centre for Intellectual Property
Policy, at para 11 [Lametti, Affidavit].
4
CCH Canadian Ltd v Law Society of Upper Canada [2004] 1 SCR 339 at para 48 (TAB 2). Katz, Affidavit, at para
44; Lametti, Affidavit, at 11.
5
SCR 34, at para 11 (TAB 4).
6
Vigneux v Canadian Performing Right Society, [1943] SCR 348, at 354 (TAB 12).
3
31
law that refutes it and made additional reversible errors. The CIPP and Professor Katz wish to
assist this Court in correcting those errors.
II.
[10]
FACTS
By order of this Court dated September 4, 2014, the Appellants were granted leave to
appeal from the judgment of the Federal Court of Appeal (FCA) A-516-12; A-63-13; A-52712, 2014 FCA 84, dated March 31, 2014.
[11]
of a licence that would permit the Appellants to do certain acts with respect to works within the
repertoire of the Respondents.
[12]
The Centre for Intellectual Property Policy (CIPP) at the Faculty of Law, McGill
University, and Professor Ariel Katz from the Faculty of Law, University of Toronto seek leave
to intervene in this appeal.
[13]
The CIPP has both a mandate and experience in intervening in important intellectual
property cases and in assisting governments in formulating intellectual property policy. Professor
Katz is a leading expert domestically and internationally on collective administration of
copyrights and has experience in contributing to public policy on issues of copyright law and
competition law, including through intervention in important cases.7
III.
[14]
STATEMENT OF QUESTIONS IN ISSUE
Should CIPP and Professor Katz be granted leave to intervene in this appeal, and if so, on
what terms?
IV.
[15]
ARGUMENT
This Court may exercise wide discretion in deciding whether or not to allow a person to
intervene. Normally, applicants for leave to intervene are required to establish: (a) that they have
an interest in the appeal; and (b) that they will be able to make submissions that are useful and
Lametti, Affidavit, at paras 5-10; Katz, Affidavit, at paras 16-18.
32
different from those of the other parties to the appeal.8 The CIPP and Professor Katz satisfy these
requirements.
A.
The Proposed Interveners Have an Interest in the Issues Arising in this Appeal
[16]
intellectual property law, and international trade in relation to intellectual property law. At the
core of its mission, the CIPP brings the most up-to-date knowledge about intellectual property
law and innovation to assist governments, policy-makers, firms, and courts in Canada and
internationally. The pursuit of fair and balanced intellectual property systems has historically
informed, and continues to inform, the research and policy agenda of the CIPP.9
[17]
The CIPP has demonstrated its interest in the pursuit of fair and balanced intellectual
property systems not only through its academic work, but also in its participation in various
public policy and law making processes, including as intervener before this Court.10
[18]
Professor Ariel Katz holds the Innovation Chair, Electronic Commerce, at the Faculty of
Law, University of Toronto. He has extensive expertise and experience in issues relating to
intellectual property generally and copyright law in particular, competition law, Internet law, and
the various interfaces between these fields. He is a leading international authority on the
regulation of collective societies, and his work in the field has been cited by this Court, by the
Supreme Court of Israel, and has influenced policy makers from the European Union, to the
United States, to Australia.11
[19]
Professor Katzs interest in and commitment to advancing public policy, especially in the
area of intellectual property and competition policy extend beyond his scholarship. He has
demonstrated this commitment in his intervention (as Director of the Centre of Innovation Law
and Policy) in the Alberta (Education) v. Access Copyright before this Court, in various
Rules of the Supreme Court of Canada, SOR/2002-156, s 55; R v Finta [1993] 1 SCR 1138, at 1142 (TAB 7).
Lametti, Affidavit, at para 6.
10
Lametti, Affidavit, at paras 7-9.
11
Katz, Affidavit, at paras 11, 15-17.
9
33
submissions that he made to the Copyright Board, and in several amicus briefs filed with the
U.S. Supreme Court that he signed and helped formulate.12
[20]
Moreover, the outcome of this appeal may affect the Proposed Interveners not only in
their own professional capacities, but also as members of the broader academic community, as
teachers, as ordinary consumers, and authors. As academics and teachers, Professor Katz and the
CIPP members are concerned about the burdens that mandatory tariffs would impose on them,
their colleagues, and their students.13 As consumers, they are concerned that the layering of
gratuitous tariffs and fees would add to the cost of producing and delivering content to
consumers, reduce the supply of content, or discourage the adoption of more efficient delivery
technologies, and further, that a holding affirming the decision below could open the gate to
numerous tariffs that could be imposed on consumers directly.14 As authors, they are worried that
if collective societies can impose themselves and their business models on readers as a matter of
law, this would thwart the development of alternative business models that are more amenable to
the interests of authors such as themselves.15
B.
The Submissions of CIPP and Professor Katz will be Useful and Different from
those of the Other Parties
[21]
The Proposed Interveners are uniquely positioned to highlight the public interest at stake
in the appeal due to their non-profit nature, their commitment to showcasing the Canadian
copyright system as an exemplar to other countries, and their extensive expertise in Canadian,
comparative, and international intellectual property law, as well as innovation policy.
[22]
While this appeal is concerned primarily with TV broadcasting, the legal questions that
arise in it impact much more broadly. There is no similar independent institution with a mission
similar to that of the CIPP likely to intervene in and address the foundational principles
underlying the disposition of the appeal, in particular, with respect to the question of whether
Board-approved licensing scheme could become mandatory on users (the mandatory tariff
12
Katz, Affidavit, at para 18.

Katz, Affidavit, at para 19; Lametti, Affidavit, at para 11.
14
15
13
34
issue).16 There is no other party or proposed intervener who has studied the collective
administration of copyrights as deeply, and who could assist this Court in providing as broad and
deep legal, historical, and economic perspective on the current issues, as Professor Katz.
[23]
Moreover, based on the Appellant factums brief treatment of the mandatory tariff
issue and its focus on technological neutrality and the legal status of broadcast incidental
copies, the Proposed Interveners anticipate that the Respondents and other potential interveners
will do the same. Therefore, to provide this Court a fuller perspective of the issues and their
implications, the CIPP and Professor Katz wish to focus on the question of whether Boardapproved licensing schemes can be imposed on users. They plan to present to this Court relevant
case law on this question that the Appellant did not cite, and make other submissions, some of
which supplement those of the Appellant, while others will be different, or even in disagreement
with the Appellant (such as with respect to the proposed solution of nominal royalties).17
[24]
Those submissions will also be useful because they will allow this Court to be fully
apprised of the issues surrounding the mandatory tariff theory, including all relevant case law
that was neither discussed below nor mentioned in the Appellants factum.18
C.
The Nature of the Proposed Legal Argument
[25]
If this Court agrees with Appellant that broadcast incidental copies do not require
copyright owners consent, then addressing the issue of mandatory tariffs may not be strictly
necessary for the disposition of this appeal. Nevertheless, the Proposed Interveners will argue
that the issue was dealt with by the Board and the FCA below, the Appellant has raised it in its
factum, it is a live issue in other pending cases,19 and is of pressing importance to all users of
copyrighted works (as well as to copyright owners). They will submit that it would be
appropriate for this Court to deal with it.20
[26]
The Proposed Interveners will focus on the nature of the proceedings before the
Copyright Board in cases concerning licensing schemes with respect to copyrights under sections
16
Lametti, Affidavit, at para 12.

Katz, Affidavit, at paras 39-40; Lametti, Affidavit, at 11.
18
Katz, Affidavit, at paras 7-10; Lametti, Affidavit, at 11.
19
Katz, Affidavit, at para 34.
20
Tsilhqotin Nation v British Columbia, 2014 SCC 44 (CanLII) (TAB 10), at paras 9899.
17
35
3, 15, 18, and 21 of the Act, and the legal effect of the Boards decisions. They will submit that
in accepting the view that Board-approved licensing schemes can be imposed on users, the FCA
has made a series of serious reversible errors.
[27]
For example, they will submit that the FCA erred by relying entirely on the language of
section 70.2 (and perhaps on unsupported and erroneous statements of the Board in paragraphs
62-63 of the Boards decision under review), and in doing so confused the question of who has
standing to initiate such arbitration proceedings, with what those proceedings are designed to
achieve, and with the effect of their outcome.
[28]
The proposed interveners will also submit that the FCA erred by ignoring relevant
statutory provisions (such as section 70.4, which actually determines the effect of the Boards
decision) and the statutory scheme as a whole, paid no attention to previous relevant decisions of
this Court and lower courts, and, with only scant discussion, has issued a ruling that subverts the
intent of Parliament, and turns the statutory scheme on its head. To paraphrase this Court, the
decision below has carelessly misconstrued the Act and threatens to allow collective societies to
become instruments of oppression and extortion.21
[29]
If granted leave to intervene, the Proposed Interveners will present those relevant cases to
this Court and explain why those cases support a different interpretation of the Act. They will
emphasize, for example, that as this Court has held in Vigneux v. CPRS, a Board-approved tariff
only qualifies the rights of copyright owners, by taking away the power of collective societies to
withhold licences or unilaterally set their terms. They will add that the case law confirms that
Parliament has established a regulatory framework that regulates copyright owners and restrains
the power of collective societies, but it did not create a system that regulates users or allows the
Board to impose on them new types of obligations.
[30]
They will submit that the FCA has ignored longstanding fundamental distinctions such as
that between an infringer and a licensee. It failed to appreciate the difference between a
copyright, which entails a right to exclude and a corresponding duty to refrain from certain acts
without the owners consent (but not an entitlement to impose payment), and remuneration
rights, which do not entail the power to exclude, but do entail a corresponding duty to pay; it
21
Vigneux v Canadian Performing Right Society, supra note 4 (TAB 12).
36
conflated the notion of royalties payable by willing licensees, with damages that may be imposed
on infringers, and with involuntary levies that can only be imposed pursuant to an explicit act of
Parliament.
[31]
The Proposed Interveners will further submit that the FCA ignored the fact that
Parliament did not vest in copyright owners the power to unilaterally turn users into licensees
and force them to pay royalties that they have never undertaken to pay. By concluding that
copyright owners, through a collective society, can nonetheless gain such additional powers
when the Board approves their licensing schemes, the FCA misconstrued the Act and ignored
this Courts holding in the 2012 CRTC Reference case that the power to allocate rights between
owners and users falls within the exclusive domain of Parliament, and cannot be delegated to a
subordinate body such as the Board.22
[32]
The Proposed Interveners will argue that the FCA has also confused the current statutory
scheme that deals with collective administration of copyrights by copyright owners, with other
schemes that allow collective bargaining between artists and producers, such as those under the
Federal Status of the Artist Act, or its Quebec counterparts.23 They will demonstrate how the
former was designed to protect users by imposing mandatory restrictions on collective societies
and the copyright owners that they represent, while the latter were designed to protect individual
authors by providing for a mechanism capable of imposing mandatory minimum terms and
conditions on producers (such as the Appellant) for the provision of artists services and other
related matters.24
[33]
This Court has already recognized the problems associated with double dipping and
disapproved of collective societies attempts to add duplicative layers of royalties and fees in
three of its decisions from 2012.25 It disapproved of such attempts in 200426 and 1968,27 as did
22
Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168 [2012] 3
SCR 489 at para 80 (TAB 5).
23
Status of the Artist Act, SC 1992, c 33; An Act Respecting the Professional Status and Conditions of Engagement
of Performing, Recording and Film Artists, CQLR c S-321; An Act Respecting the Professional Status of Artists in
the Visual Arts, Arts and Crafts and Literature, and Their Contracts with Promoters, CQLR c S-3201.
24
Canadian Artists Representation v National Gallery of Canada, 2014 SCC 42 (CanLII) (TAB 1), at para 2.
25
SCR 34 at paras 1, 11 (TAB 4); Re:Sound v Motion Picture Theatre Associations of Canada [2012] 2 SCR 376 at
para 14 (TAB 6); Society of Composers, Authors and Music Publishers of Canada v Bell Canada, [2012] 2 SCR 326
at para 48 (TAB 8).
37
the Judicial Committee of the Privy Council in 1945.28 Similar practices by collective societies
and their members that result in double dipping and layering of royalties and fees lies at the
heart of this appeal. The FCA has upheld them on the basis of this Courts judgment in Bishop v.
Stevens, the currency of which is crucial to the resolution of this appeal.29 If granted leave to
intervene, the Proposed Interveners will be able to assist this Court by situating these practices in
a broader historical context. They will show how aversion to similar practices motivated the
regulatory oversight of collective societies in Canada as early as the 1930s, and how similar
concerns in the United States resulted in a series of antitrust cases that imposed limitations on the
powers of collective societies.
[34]
They will also submit that if a Board-approved licensing scheme could be imposed on
users, this would only encourage the artificial division and subdivision of copyrights for the
purpose of double or multiple dipping, and require ongoing intervention by the courts to mitigate
the inevitable abuses.
[35]
Lastly, the Proposed Interveners will caution this Court to reject the temptation of
seemingly pragmatic solutions, such as the discount formula adopted in the decisions below, or
the Appellants reluctant proposal to impose only nominal royalties. Such proposals might
provide a tolerable resolution for the Appellant or some other large institutional users, but their
fallout could seriously and negatively affect many other users for years to come.
V.
[36]
SUBMISSIONS ON COSTS
The Proposed Interveners do not seek any costs and submit that no costs should be
awarded against them.
26
Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers, [2004] 2
SCR 427 (TAB 9).
27
Composers, Authors and Publishers Assoc of Canada Limited v CTV Television Network Limited et al, [1968] 2
SCR 111 (TAB 3).
28
Vigneux and Others v Canadian Performing Right Society Limited (Canada), [1945] UKPC 1, at 67 (TAB 11).
29
Appellants Factum.
38
39
VII.
TABLE OF AUTHORITIES
Authority
Reference in Argument
Cases
Para
1.
Canadian Artists Representation v. National Gallery

of Canada, 2014 SCC 42 (CanLII).
32
2.
CCH Canadian Ltd. v. Law Society of Upper Canada

[2004] 1 SCR 339
3.
Composers, Authors and Publishers Assoc. of Canada

Limited v. CTV Television Network Limited et al.
[1968] 2 SCR 111
33
4.
Entertainment Software Association v. Society of

Composers, Authors and Music Publishers of Canada,
[2012] 2 SCR 34
8, 33
5.
Reference re Broadcasting Regulatory Policy CRTC

2010-167 and Broadcasting Order CRTC 2010-168
[2012] 3 SCR 489
31
6.
Re:Sound v. Motion Picture Theatre Associations of

Canada [2012] 2 SCR 376
33
7.
R. v. Finta [1993] 1 SCR 1138
15
8.
Society of Composers, Authors and Music Publishers

of Canada v. Bell Canada, [2012] 2 SCR 326
33
9.
Society of Composers, Authors and Music Publishers

of Canada v. Canadian Assn. of Internet Providers,
[2004] 2 SCR 427
33
10.
Tsilhqotin Nation v. British Columbia 2014 SCC 44

(CanLII)
25
11.
Vigneux and Others v Canadian Performing Right
33
40
Society Limited (Canada), [1945] UKPC 1

12.
Vigneux v Canadian Performing Right Society, [1943]

SCR 348
8, 28
Statutes
13.
An Act Respecting the Professional Status and

Conditions of Engagement of Performing, Recording
and Film Artists, CQLR c S-32.1
32
14.
An Act Respecting the Professional Status of Artists in

the Visual Arts, Arts and Crafts and Literature, and
Their Contracts with Promoters, CQLR c S-32.01
32
15.
Rules of the Supreme Court of Canada, SOR/2002-156
15
16.
Status of the Artist Act, SC 1992, c 33
32
41
VIII.
STATUTORY PROVISIONS
Rules of the Supreme Court of Canada, SOR/2002-156
42
43

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File No.

CANADIAN BROADCASTING CORPORATION/

SODRAC 2003 INC. and SOCIETY FOR REPRODUCTION RIGHTS OF

CENTRE FOR INTELLECTUAL PROPERTY POLICY AND ARIEL KATZ

MOTION RECORD OF THE PROPOSED INTERVENERS

Counsel for the Appellants,

Agent for the Appellants,

Tel.: 514 397-4335 (Mr. Nitoslawski)

Tel.: 613 696-6884

Counsel for the Respondents,

Agent for the Respondents,

Tel.: 514 281-0033

Tel.: 819 243-2616 ext. 224 Fax: 819

AFFIDAVIT OF DAVID LAMETTI

AFFIDAVIT OF ARIEL KATZ

MAIN ISSUES IN APPEAL

STATEMENT OF QUESTIONS IN ISSUE

File No. 35918

CANADIAN BROADCASTING CORPORATION/

SODRAC 2003 INC. and SOCIETY FOR REPRODUCTION RIGHTS OF

CENTRE FOR INTELLECTUAL PROPERTY POLICY AND ARIEL KATZ

Counsel for the Appellants,

Agent for the Appellants,

Tel.: 514 397-4335 (Mr. Nitoslawski)

Tel.: 613 696-6884

Counsel for the Respondents,

Agent for the Respondents,

Tel.: 514 281-0033

Tel.: 819 243-2616 ext. 224 Fax: 819

the Other Parties

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 18th day of January 2015.

File No. 35918

SODRAC 2003 INC. and SOCIETY FOR REPRODUCTION RIGHTS OF

AFFIDAVIT OF DAVID LAMETTI

I, DAVID LAMETTI, of the City of Montreal in the Province of Quebec, AFFIRM AS

I am a tenured Associate Professor at the Faculty of Law of McGill University, where I am

The CIPP is an internationally recognized, independent, not-for-profit think tank sitting

human genes in the AMP v Myriad Genetics 569 US

(2013) case before the Supreme Court of

The CIPP will suffer prejudice if leave to intervene is not granted.

Affirmed before me at the City of Montreal, )

File No. 35918

CANADIAN BROADCASTING CORPORATION/

SODRAC 2003 INC. and SOCIETY FOR REPRODUCTION RIGHTS OF

CENTRE FOR INTELLECTUAL PROPERTY POLICY AND ARIEL KATZ

AFFIDAVIT OF ARIEL KATZ

than the one that is currently before it.

About the Deponent

I am a tenured Associate Professor at the Faculty of Law University of Toronto where I

also hold the Innovation Chair in Electronic Commerce.

I am also one of the founding members of Authors Alliance, an organization that

My formal qualifications are as follows: LLB (Hebrew University, Jerusalem) 1997,

My work on collective administration of copyrights was cited by this Court,3 by the

My interest in these issues, and my specific expertise with respect to collective

administration of copyrights, has also prompted me to become involved as an objector in the

The Main Issues in This Appeal

Reasons for Seeking Leave to Intervene

I have also learned, mainly through conversations with decision-makers in various

To emphasize, those users are forced to participate in recurring lengthy judicial

Outline of the Proposed Submissions

The question of whether Board-approved licensing schemes are mandatory might be

File No. 35918

CANADIAN BROADCASTING CORPORATION/