University of Toronto Law School Faculty Blog

The GSU Copyright Case: Some Canadian Perspectives

This post was originally published on Prof. Katz's blog.

In April 2008, three publishers, Cambridge University Press, SAGE Publications, and Oxford University Press, filed a copyright infringement lawsuit against Georgia State University, alleging that GSU infringed their copyrights by allowing professors to upload excerpts from books onto the university’s electronic reserve system (ERes). The complaint alleged “systematic, widespread, and unauthorized copying and distribution of a vast amount of copyrighted works”, and argued that GSU “has facilitated, enabled, encouraged, and induced Georgia State professors to upload and post to these systems - and Georgia State students simultaneously to download, view, print, copy, and distribute - many, if not all, of the assigned readings for a particular course without limitation.” Unless GSU’s “infringing digital distribution practices are enjoined", the complaint asserted, "Plaintiffs, authors, and the publishing community at large will continue to face a certain, substantial, and continuing threat of loss of revenue, which will in turn threaten Plaintiffs' incentive to continue supporting and publishing the cutting-edge scholarship upon which the academic enterprise depends.”

On Friday, the US District Court issued a 350 pages decision, dismissing 94 out of the 99 claims of copyright infringement.

Prof. Ed Morgan - "The difference between lunchtime prayer and a Jesus T-shirt"

This commentary was first published by Prof. Ed Morgan in The Globe and Mail on May 9, 2012.

A public school in Toronto thinks a clergyman can be invited to conduct Islamic prayers at lunchtime on school grounds. As a school trustee explains it, “What we’re doing is what we should be doing as a school board and that is accommodating students’ needs no matter what their religion is.”

A public school in Chester Basin, N.S., thinks a student can be prohibited from wearing a T-shirt with a Christian message on school grounds. As school trustees explain it, “It is expected that students will not wear clothing with messages that may offend others’ beliefs, race, religion, culture or lifestyle.”

Does Canadian law really get such a failing grade?

Prof. Ed Morgan - "Foreign affairs: a delicate balancing act"

This article by Prof. Ed Morgan was originally published in The Lawyers Weekly, April 13, 2012.

When it comes to conducting foreign affairs, it is well established that the constitution puts the weight of responsibility on the federal government. But in recent years, the courts have deviated from that rule as often as they have invoked it.

In the Afghan prisoners case, the Federal Court of Canada explained that the government owes no constitutional duty when, after questioning, the military turns detainees over to a foreign government. The judgment presumed that Canadian forces require flexibility, and enjoy the discretion to deviate from domestic rules when they deal with an allied state and prisoners of war.

That ruling came within a year of the Supreme Court's first judgment on Omar Khadr's treatment in Guantanamo, where it held that the government owes a constitutional duty to a detainee held by a foreign state and turned over to CSIS for questioning. The court presumed that intelligence officers can adhere to the same domestic standards as the Charter requires of ordinary police when they deal with an allied state and national security prisoners.

The Best Possible Outcome for Universities, Really?

This post was posted originally on Prof. Katz's blog.

Access Copyright and the Association of Universities and Colleges of Canada (AUCC) announced yesterday that they had negotiated a Model Licence that would allow universities to reproduce copyright protected materials in both print and digital formats. In a joint media release issued by Access Copyright and the AUCC, Paul Davidson, president of the AUCC, was quoted as saying "We believe that this negotiated agreement provides the best possible outcome for universities, their students and faculty." Really, Mr. Davidson, Really?

Prof. Audrey Macklin with Lorne Waldman: Ottawa’s bogus refugee bill

This commentary by Prof. Audrey Macklin and Lorne Waldman was first published on the Toronto Star website on Feb. 22, 2012.

Jason Kenney, the minister of Citizenship and Immigration, knows who the real refugees are. Or at least he knows which ones are “bogus”: refugee claimants from Mexico or Sri Lanka or Hungary are bogus. Bogus refugees include those who use smugglers to overcome the barriers to lawfully reaching countries like Canada which, by signing the refugee convention, have promised not to send back persons fleeing persecution.

Kenney’s system-abusing bogus refugees include those fleeing discrimination, oppression and hardship not quite horrific enough to satisfy the standards required by the jurisprudence defining and applying the refugee definition. Kenney does not mention that close to 40 per cent of the claimants were recognized as genuine refugees last year. Like falling crime statistics, that is an inconvenient truth for this government. Kenney manages to convert the fact that the system does not confer refugee protection on all who seek it into evidence of system failure.

Prof. Audrey Macklin: Minister Kenney’s Ban on Face Coverings is Ultra Vires

Not only is Minister Kenney’s ban on face coverings a gratuitous insult to Muslim women, it’s ultra vires.

In the wake of all the publicity about the Minister of Immigration’s decree that no one shall be allowed to go through the citizenship ceremony with her face covered, I thought I'd find out how the ban on face coverings was authorized in law. It appears that the ban is buried in the Operations Manual on citizenship ceremonies.  The Operations Manual provides guidance to citizenship bureaucrats (including Citizenship Judges) about how to interpret and apply the law -- the Citizenship Act and the Citizenship Regulations.  Since they are only guidelines, they do not have the force of law, and are invalid to the extent that they contradict the statute or the regulations.

You can find the citizenship manual here (PDF) (see s. 6.5). The manual contains an elaborate set of instructions about how citizenship officials shall respond if a woman is both uppity and oppressed enough to show up with her face covered.

The more interesting discovery, though, is the citizenship regulations that govern citizenship ceremonies.  These seem to provide an entitlement to religious accommodation, and therefore cut against the legality of the Minister’s instructions. Section 17(1)(b) speaks directly to religiosity, and 17(1)(d) to 'intergroup understanding' as a component of good citizenship. 

Governance Issues: The UofT-Access Copyright Agreement

First posted on Prof. Katz's blog.

In addition to serious copyright, privacy, and academic freedom problems arising from the Agreement signed last week between UofT and Access Copyright, the way it has been handled so far raises some questions about whether it is consistent with UofT’s governance procedures.

No serious consultation or discussion has taken place before the Agreement was signed, although, interestingly, s. 22 of the Agreement does contemplate it being conditional upon “applicable Governance approval”. It seems only natural that an agreement with wide, deep, and long-term implication such as this one would be subject to governance approval, yet it is less clear that UofT's Administration is going to seek the appropriate approval. The Administration has not done it yet, and in fact, there are worrying signs that the Agreement will not get the scrutiny that it deserves. I hope I'm misinterpreting these signs.

Prof. Jacob Ziegel: "Supreme Court appointments and wrong priorities"

This commentary by Prof. emeritus Jacob Ziegel was first published in The Hill Times on Dec. 12, 2011.

On Nov. 14, former chief justice Roy McMurtry of Ontario and several current members of the Ontario Court of Appeal attended the swearing-in at the Supreme Court of Canada of the two new appointees to the court, Justices Michael Moldaver and Andromache Karakatsanis, both from Ontario. While they were in Ottawa, a reporter for The Lawyers Weekly asked McMurtry and the Appeal Court judges for their reactions to the questioning of these candidates by the House of Commons Ad Hoc Committee before their appointments were confirmed by the Prime Minister.

McMurtry said he thought the questioning of Justice Moldaver was too aggressive and he expressed concern that Canada was gravitating to the type of hostile questioning of candidates for appointment to the U.S. Supreme Court by members of the U.S. Senate Judiciary Committee. McMurtry was apparently referring to NDP MP Joe Comartin’s criticism of Justice Moldaver’s lack of bilingualism and his skepticism that the justice would ever become adequately bilingual despite his assurances to the committee that he would give this objective a top priority.

The other members of the Ontario Court of Appeal, who were interviewed in Ottawa by the journalist, had no problems with the questions addressed to Justice Moldaver, but thought they should have been directed to the Harper government because it was the government that had selected these candidates for prospective appointment to the Supreme Court.

Prof. Lisa Austin: "Stop hiding behind the phone book, Mr. Toews"

This commentary was first published in The Globe and Mail  on Dec. 6, 2011.

Canada’s federal Privacy Commissioner, along with her provincial and territorial counterparts, has serious concerns regarding the federal government’s proposed lawful access legislation. These include the fact that the government has provided no evidence for the necessity of this expansion of state surveillance powers or why it requires departures from the standards of judicial oversight we usually apply when the police want access to private information. Public Safety Minister Vic Toews has responded by throwing the phone book at them, including in a recent letter to The Globe.

Usually, if the state wants access to private information, our Constitution requires prior judicial authorization (a warrant) on a standard of reasonable and probable grounds. The point is not to prevent state access but to ensure that such access occurs within a framework of accountability and oversight. Some departures from this are tolerated, such as when the state interest goes beyond routine law enforcement or where there is a diminished expectation of privacy in the information.

Prof. Kent Roach: Abdullah Khadr and the Consequences of Detainee Abuse

This commentary by Prof. Kent Roach is cross-posted from the JURIST website.

According to the Canadian courts, what happens in Pakistan does not stay in Pakistan. The Supreme Court of Canada recently refused to review a permanent stay of extradition proceedings against Abdullah Khadr. Lower courts had previously ruled that "gross misconduct" by the US in arranging and prolonging Khadr's detention in Pakistan justified the extraordinary remedy of a stay of proceedings. The Supreme Court's refusal to consider this case means that Khadr will not be extradited to the US, where he has been indicted on charges of material support of terrorism for allegedly supplying arms and explosives to be used against US forces in Afghanistan. It is possible, but not probable, that Canadian authorities will prosecute Khadr, who was released in August 2010 after four-and-a-half years of pre-extradition custody and has still not been charged in Canada.

Abdullah Khadr is part of Canada's infamous Khadr family, self-professed supporters of al Qaeda. His father was a close associate of Osama Bin Laden and one of his younger brothers, Omar Khadr, remains in Guantanamo where he pleaded guilty to various charges, including the murder of an American soldier. Abdullah Khadr was captured by the Inter-Services Intelligence Directorate in Pakistan in October 2004 after the US posted a $500,000 bounty for his capture. The fact that the US paid such a bounty was secret until it was revealed in a decision by a Canadian judge in related state secrets proceedings and only after a Canadian newspaper was initially enjoined from publishing the information. The judge stressed that while the US had not agreed to the release of information about the bounty, "[i]t is now more than three years since the information was received by Canadian officials, the general practice is in the public domain, no human source would appear to be at risk and the circumstances in Pakistan have changed since these events took place."