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Panel on Ethics in Law and Business and other recent webcasts

Monday, March 18, 2013

The University of Toronto Faculty of Law's Centre for the Legal Profession (CLP) recently held a panel discussion to launch its new Program on Ethics in Law and Business. The panel included CLP academic director Prof. Anita Anand, Justice Michael Code, Jeremy Fraiberg, Julia Holland, Lawrence Ritchie and Prof. Alexander Dyck. The panel discussed fact scenarios based on two recent Canadian business catastrophes: Nortel and YBM Magnex.

The panel discussion was recorded, and you can watch the panel discussion webcast here.

Other recent events at the Faculty of Law can also be viewed online:

Eviscerated or Not: More on the Access Copyright Question

Ariel Katz
Sunday, September 23, 2012

Originally posted on Prof. Katz's blog

In a lengthy post last week, Barry Sookman responded, and attempted to refute, Michael Geist's analysis of the implications of the recent Supreme Court of Canada's decisions on Access Copyright and its business model. In a nutshell, Michael Geist argued that schools, which already have directly negotiated licenses with numerous publishers, can now "rely more heavily on fair dealing for the copying that takes place on campus and in the classroom. This includes copies made by teachers for students for instructional purposes, copies that previously formed a core part of Access Copyright's claim of the necessity of a licence." Michael Geist never argued that the Supreme Court held that all copying in schools is fair dealing and that a license is never required. Rather, Michael Geist’s essential point is that Access Copyright's very restrictive licenses offer very little beyond what is either already licensed (and often paid for) or what might very likely be regarded as fair dealing anyway.

Copyright Taxation Without Representation

Ariel Katz
Thursday, June 21, 2012

The Copyright Board of Canada and that various tariffs that it certifies rarely attract media attention. But a tariff recently certified received coverage by most major media outlets. That tariff, mandating payments for playing recorded music in weddings and other events for the years 2008-2012, will be collected by Re:Sound, a private organization representing record companies and performing musicians. If the events include dancing, the fee is double. This unusual media attention, often describing the fees as a “wedding tax” or “dancing tax”, is not surprising because it reflects how undemocratic some aspects of Canada’s copyright system have become. If that is not enough, Re:Sound now contemplates a threefold increase in the “dancing tax” according to its newly proposed tariff for the years 2013-2015.

Response to McMaster's Q&As on Access Copyright

Ariel Katz
Tuesday, June 19, 2012

I received a copy of a document in which McMaster University provides answers to some of the questions arising out of its decision to sign the Model License with Access Copyright.

Since many universities are grappling with similar questions and answers, I have taken the liberty of providing some responses to this document. The document is in a Q&A form, so I added my responses in green below each answer.

You can read it here.

Originally posted on Prof. Katz's blog.

UofT Faculty Association Questions the Access Copyright Agreement

Ariel Katz
Tuesday, June 19, 2012

Originally posted on Prof. Katz's blog.

The University of Toronto Faculty Association (UTFA) has recently sent a letter to UofT's Provost and Vice President questioning the decision to sign a license agreement with Access Copyright. UTFA's letter raises many concerns that have already been shared on this blog and by others.

UTFA asks the Provost to "clarify the Administration’s interpretation of the scope of fair dealing rights and any plans by your office to advocate publicly for an expansive interpretation of these rights in higher education in Canada. This might include, for instance, any plans you have to revisit the new contract in light of pending developments in the interpretation and implementation of fair dealing rights and copyright law more broadly in Canada."

Keep Calm, Opt Out, and Carry On

Ariel Katz
Saturday, June 9, 2012

Originally posted on Prof. Katz's blog.

One of the questions that troubles many Canadian universities who need to decide whether to accept Access Copyright offer-that-they-can’t-refuse is what will be the consequences of not signing the AUCC-brokered Model License. One fear, which I have addressed in an earlier post, concerns the risk of being liable for copyright infringement in case that some infringing copies would be made on campus. The other fear is the possibility that the Copyright Board will approve Access Copyright’s Proposed Tariff, and that upon its approval, would become mandatory and retroactive.

The precise effect of an approved tariff is a novel question and there is very little, if any, binding case, and virtually no commentary, and admittedly, my own views on this question have evolved. Therefore, this post reflects some of my recent thinking on this question. In brief, my opinion is that the view that once approved, the tariff will be mandatory is not mandated by the Copyright Act and will be in contrast to basic legal principles. Parliament did not and could not have indented to allow such an outcome, and even if it did, it is doubtful whether this would be a constitutionally valid exercise of its legislative power.[1]

The GSU Copyright Case: Some Canadian Perspectives

Ariel Katz
Tuesday, May 15, 2012

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.”

The Difference Between Lunchtime Prayer and a Jesus T-shirt

Ed Morgan
Wednesday, May 9, 2012

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?

Whether religious expression is permitted in schools turns on the meaning given to “freedom of religion” and “freedom of expression.” The confusion over this question calls for a review class on the Canadian Charter of Rights and Freedoms.

Beginning in the mid-1980s, the courts determined that public schools cannot teach religion in a doctrinal way. While they can, and often do, offer history and social-studies classes that survey world religions, the mandatory separation of church and state prohibits them from teaching religion as it is taught to adherents of that religion – i.e., as a matter of belief rather than general knowledge.

Telus Funds Ignore Governance

Anita Anand
Monday, April 30, 2012

This commentary was first published in the Financial Post on April 28, 2012.

The collapse of Magna’s dual-class share structure in 2011 via an insider bid for Frank Stronach’s holdings raised eyebrows because of the unprecedented pay out of an 1,800% premium that Mr. Stronach (through a private holding company) received in the transaction. Dual-class structures are once again in the spotlight with the recent proposal by Telus to eliminate its dual class structure. It was clear that Magna concerned securities regulators at least from a disclosure standpoint. By contrast, regulators have been conspicuously silent on the Telus transaction.

Under the terms of the Telus proposal, which goes to a shareholder vote on May 9, each non-voting share would be converted to a common share on a one-for-one basis. The two classes of shareholders will vote separately on the transaction. Two-thirds approval from each class is required in order for the votes to pass. Thus, a concern about shareholder participation that existed in previous dual class transactions, such as Canadian Tire, falls away since shareholders in each class have a vote.

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