Although notices of appeal are common place in intellectual property matters, three recent filings at the Federal Court of Appeal are, at least in this author’s opinion, noteworthy to those in the copyright and trade-mark communities.
Copyright Infringement and A Public Policy Defence?
A notice of appeal has been filed against the decision of Justice Manson in Canadian Standards Association v. P.S. Knight Co. Ltd, 2016 FC 294. The heart of the appeal involves Justice Manson’s determination that PS Knight infringed CSA’s copyright in the Canadian Electrical Code (the “CSA Code”).
In its notice of appeal, PS Knight argues that the application judge erred in rejecting its public policy argument that its publications did not infringe any copyright in the CSA Code since the CSA Code had been incorporated by reference in the laws of most provinces. It will be interesting to see how the Federal Court of Appeal handles PS Knight’s public policy argument. This argument was briefly dealt with by Justice Manson, (at paras 41-43), who appeared to rely on a “sweat of the brow” approach to, in part, reject PS Knight’s submissions on this point.
Sale of a Licence – Good or Service under the Trade-Marks Act?
The second interesting filing is a notice of appeal against the decision of Justice O’Reilly in Specialty Software Inc. v. BEWATEC Kommunikationstechnik GmbH, 2016 FC 223. I previously blogged about my concerns with this decision: Have Online Services Transformed Into Goods Under the Trade-Marks Act?
In its notice of appeal, Bewatec submits Justice O’Reilly committed an error of mixed fact and law in holding that the sale of a licence to use an online service constitutes “transfer of the property in or possession of the goods” pursuant to section 4 of the Trade-marks Act. In my blog, I argued Justice O’Reilly’s decision perhaps broadened the scope of services for the purposes of trademark law. Bewatec provides an example of this argument by suggesting an implication of the decision would be that any contract for the provision of services would constitute “goods” under Canadian trademark law.
The parties in this matter are “actively engaged in settlement discussions” (per the Court’s docket). Thus, perhaps the Court of Appeal will not get a chance to hear this matter, which would continue to leave ambiguity as to the distinction between goods and services under the Trade-Marks Act.
The K-12 Tariff (2010-2015) – The Next Chapter
Finally, Access Copyright has filed for judicial review of the Copyright Board of Canada’s decision regarding Access Copyright’s proposed tariff for elementary and secondary schools (K-12) for the years 2010-2012 and 2013-2015.
Considering that Access Copyright first proposed its tariff in March 2009, there was a lot of fanfare in the copyright community when the Board released its lengthy decision in late February 2016. For example, Howard Knopf wrote extensively on the decision; Michael Geist provided his prospective, while Kate Edwards of the Association of Canadian Publishers provided a short rebuttableto that; Access Copyright compiled a variety of press releases.
In its application for judicial review, Access Copyright submits the Board made three errors. First, Access Copyright argues the Board erred in excluding works from its repertoire. Second, in Access Copyright’s view, the Board erred in holding that copying one or two pages of a book was a non-compensable reproduction since the Board failed to undertake a qualitative assessment of what had been copied. Lastly, Access Copyright takes numerous issues with the Board’s evidentiary assessment and application of the fair dealing factors.
No matter the outcome of Access Copyright’s application for judicial review, it is likely that the K-12 Tariff (2010-2015) will soon be known as the Neverending Story.