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Earlier this month the Copyright Board released the latest decision in the ongoing saga of SOCAN's "Tariff 22." For those unfamiliar with its history, this is the same tariff that was originally proposed to apply to internet service providers in 1996. When the Supreme Court of Canada held that neutral network providers aren't liable for communications of copyright-protected content, SOCAN restructured the tariff to focus on entities that sell downloads, stream songs, podcast or otherwise use music on their websites. The Board held that online music services must pay SOCAN 3.4% of the purchase price for a digital download, 6.3% of fees for subscription-based download services and 7.6% of fees for subscription-based streaming services.

Michael Geist and Howard Knopf have provided comments on the case. So too have other notables including copyright guru Bill Patry and Eliot Van Buskirk of Wired's Listening Post. Those folks have already addressed some of the most noteworthy aspects of the Board's decision, so I'll focus on only a few points in the following remarks.

Late last week I was asked by the media to comment on a copyright dispute between the Library and Archives Canada and CARFAC and RAAV, organizations that represent the interests of visual artists. When LAC tried to get artists to sign this standard form licence agreement granting the Government rights to use artworks in various ways, CARFAC and RAAV came out with this public release urging artists not to capitulate. The story was pretty much killed when LAC backed down, so my interview never aired, though the Globe did run a small piece on the issue.

Because I still think the story is interesting, I wanted to provide a few remarks about it before it fades away. First, as someone who has worked with CARFAC Ontario in the past to teach visual artists about their rights, and a writer/creator myself, I'm very sympathetic to the need to defend artists against exploitation. But as a scholar and educator, I also understand the difficult position LAC finds itself in when wanting to use copyright-protected works for sometimes innocuous purposes. So here's my view on this dispute ...

Last week's Lawyers Weekly featured a commentary by me and my colleague, Heather McLeod-Kilmurray, about the case of Hoffman v. Monsanto. Our argument is that the Court has a real opportunity to step up to the environmental plate by granting leave to appeal in this case.

We note that five years ago, Justice Binnie began his judgment in the so-called Harvard Mouse case by pointing out that the biotechnology revolution “presents potential and serious dangers as well as past and future benefits.” The question of benefits was seemingly settled in biotech firms' favour after the Court held in Monsanto v. Schmeiser that gene patents can be used to control entire plants as well as their progeny. Now the tables are turned in Hoffman v. Monsanto. The Hoffman plaintiffs say that the “serious dangers” Justice Binnie spoke about include uncontrollable and ongoing genetic contamination of canola crops and fields. Alleged damages also include clean-up costs and economic losses resulting from the inability to meet organic certification requirements. The plaintiffs lost at both the application stage and on appeal. 

We deal more with the merits of the claim in our article, but also point out that by granting leave the Supreme Court can properly put these issues in a broader biotechnological and environmental context, where they belong. If it refuses the plaintiffs' application, it will have squandered the chance to engage important national (or global) issues about biotechnology and biodiversity. This case could thrust Canada back into the global debate over genetically modified organisms and biotechnology more generally. We write that the Supreme Court should seize this opportunity to demonstrate its commitment to the environmental ideals it has already endorsed, and restore balance to this area of the law.

A lot of people are talking about the $220,000 award given to the RIAA by a Minnesota jury this week. I was asked for my comments by about a half-dozen CBC radio stations from across the country yesterday. In a series of interviews from St. John to Victoria I tried to convey a couple of basic points.

Just recently I discovered the latest in a series of Canadian cases involving copyright and freedom of expression. This past summer, in Corporation Sun Media c. Syndicat canadien de la fonction publique, 2007 QCCS 2943, a Québec court held that copyright apparently always trumps expression. For some reason, Canadian courts can't seem to get it: the Charter, not the Copyright Act, is the supreme law of the land.

This fall the Supreme Court of Canada will hear the case of Transportaction Lease Systems v. Yeung. The issue for the Court involves the vicarious liability of property owners. Section 86 of B.C.'s Motor Vehicle Act makes a vehicle owner vicariously liable for the negligence of persons driving the vehicle with the owner's consent. According to the B.C. Court of Appeal, that includes a lessor.

I'm very interested in that case because I suggest that vicarious ownership obligations can extend to intellectual property owners as well. In an article called "Biotrespass," which was just published in the Bulletin of Science, Technology and Society, I argue that a patent licensor ought to be liable for the actions of its licensees. A landlord can be liable for the acts of her tenant in a real property context, and a lessor can be liable for acts of lessee in a personal property context. Though liability in the Yeung case turned on statutory interpretation,  in principle there's no reason to treat intellectual property owners any differently than real or personal property owners. Because real, personal and intellectual property rights provide owners with control over the property, often bolstered by contracts, the threat of liability creates an incentive to exercise that control so as to minimize the risk of harm to others.

It happens that the Supreme Court has a chance consider my argument about intellectual property ownership obligations in the near future. In the case of Hoffman v. Monsanto a group of organic farmers are seeking leave to appeal from judgments of the Saskatchewan Court of Appeal and Court of Queen's Bench denying their application for certification as a class action. They're alleging that Monsanto and Bayer Crop Science are liable for harms caused by genetically modified crops that stray from licensed farmers' fields. Though the claims are complex, the plaintiffs are relying heavily on the notion of intellectual property ownership obligations.

We'll soon see if the Supreme Court chooses to recognize that real, personal and intellectual property rights come with responsibilities, and whether vicarious liability is the appropriate legal tool for implementing this principle, or if there are other grounds on which to impose liability. When my tort and property classes get underway this week, these will be cases to watch.

The Copyright Board has just decided it can proceed to consider a proposed tariff on digital audio recorders such a Apple's iPod. Deja vu? Indeed. The last time the Board dealt with this issue, it had approved a tariff on the memory embedded in these types of devices. The Federal Court of Appeal granted an application for judicial review of this decision, finding that the Board lacked the statutory authority to do what it did. The Court said, "A digital audio recorder is not a medium;" it can't be subject to a levy.

This time, the Board dove into a clever array of analytical acrobatics to point out that the issue is different. Last time, according to the Board, it was all about the memory in the recorder. Now, it is about the recorder itself. In 2004, the Court had said, "it is the device that is the defining element of the levy and not the memory incorporated therein," but the Board didn't seem to accept that categorization of its previous decision. And what about the Court's apparently unambiguous remark that "A digital audio recorder is not a medium"? Well, the Board found that this was said as obiter dicta. Likewise with the Court's statement that "there is no authority for certifying a levy on such devices or the memory embedded therein." Since, in the Board's view, the Court didn't have to make that finding, it isn't binding.

Though objectors suggested the Board should at least find the Court's comments persuasive, if not determinative, the Board disagreed. The Board's statement was the exact opposite of the Court's: "a digital audio recorder is an 'audio recording medium'" as long as it is ordinarily used to make private copies of music (my emphasis). While the Court cautioned that "it is for Parliament to decide whether digital audio recorders such as MP3 players are to be brought within the class of items that can be levied," the Board employed a purposive interpretation of the Act to conclude otherwise. Incidentally, the Board also rejected objectors' arguments about estoppel and other equitable principles.

So what are the implications of all this?