e-document T-1862-15-ID 130

F D
I FEDERAL COURT É
L COUR FÉDÉRALE P
E O
D S
June 17, 2021 É
17 juin 2021
Court File No. T-1862-15
Jonathan Macena
FEDERAL COURT
OTT 43
SIMPLIFIED ACTION

BETWEEN:

1395804 ONTARIO LTD., operating as BLACKLOCK’S REPORTER

PLAINTIFF

- and -

THE ATTORNEY GENERAL OF CANADA

DEFENDANT

MOTION RECORD OF THE SAMUELSON-GLUSHKO CANADIAN

INTERNET POLICY & PUBLIC INTEREST CLINIC
(Motion for leave to intervene, to be heard in writing)

Pursuant to Rules 109 and 369 of the Federal Court Rules

Samuelson Glushko Canadian Internet CAZA SAIKALEY SRL/LLP

Policy & Public Interest Clinic Lawyers/Avocats
(CIPPIC) 350-220 Laurier Avenue West
University of Ottawa, Faculty of Law Ottawa, ON K1P 5Z9
Common Law Section
57 Louis Pasteur Street
Ottawa, ON K1N 6N5

David Fewer James Plotkin

Tel: +1 (613) 562-5800 ext. 2558 Tel: +1 (613) 562-2292
Fax: +1 (613) 562-5417 Fax: +1 (613) 562-2087
Email: dfewer@uottawa.ca Email: jplotkin@plaideurs.ca

Counsel for the Proposed Intervener, Counsel for the Proposed Intervener,
CIPPIC CIPPIC
TO: THE OFFICE OF THE REGISTRY
Federal Court

AND TO: MBM Intellectual Property Law LLP

275 Slater Street, 14th Floor
Ottawa, ON K1P 5H9

Scott Miller
Tel: +1 (613) 567-0762
Fax: +1 (613) 563-7671

Counsel for the Plaintiff

AND TO: ATTORNEY GENERAL OF CANADA

Department of Justice Canada
Civil Litigation Section
500-50 O’Connor Street
Ottawa, ON K1A 0H8

Alexander Gay
Andrew Gibbs

Tel: +1 (613) 567-0762

Email: Alexander.Gay@justice.gc.ca
Andrew.Gibbs@justice.gc.ca

Counsel for the Defendant

 i

Table of Contents

DOCUMENT PAGE

Notice of Motion 1

Schedule “A” - Draft Order 5

Affidavit of Tamir Israel affirmed June 16, 2021 8

Written Representations 19
 1

Court File No. T-1862-15

FEDERAL COURT
SIMPLIFIED ACTION

BETWEEN:

1395804 ONTARIO LTD., operating as BLACKLOCK’S REPORTER

PLAINTIFF

- and -

THE ATTORNEY GENERAL OF CANADA

DEFENDANT

NOTICE OF MOTION
OF THE SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY &
PUBLIC INTEREST CLINIC
(Motion for leave to intervene, to be heard in writing)

Pursuant to Rules 109 and 369 of the Federal Court Rules

TAKE NOTICE THAT the Samuelson-Glushko Canadian Internet Policy and

Public Interest Clinic (“CIPPIC”) will make a motion to the Court in writing under
Rule 369 of the Federal Courts Rules.

THE MOTION IS FOR an Order, in the form attached as Schedule “A” to this
Notice of Motion, granting CIPPIC leave to intervene in this proceeding.

THE GROUNDS FOR THE MOTION ARE:

1. CIPPIC will draw on its institutional mandate and expertise to provide useful
submissions distinct from those of other parties on the public interest dimensions of
this action:

a. This matter raises important matters of public interest. CIPPIC’s public

interest perspective differs from those of the parties to this proceeding and
 2

will provide the Court with distinct views on the issues raised in this
matter. CIPPIC has a particular interest in the legal issues raised in this
proceeding insofar as their determination will impact the rights and
obligations of those who use copies of works subject to copyright to
engage in fair dealing, including creators who build on the works of
others;

b. CIPPIC’s institutional expertise on matters relating to copyright law will

allow it to provide meaningful and distinct contributions to the resolution
of the matters raised in this motion. CIPPIC has participated in numerous
parliamentary hearings, regulatory processes, and judicial proceedings
that addressed the need for balanced copyright and workable
implementation of legal protection for technical protection measures. If
granted leave, CIPPIC will draw on its extensive and multi-disciplinary
expertise to provide useful submissions distinct from those of other
parties to this motion; and

c. CIPPIC’s expertise in these matters has been recognized by courts that

have granted it intervention status on similar matters, including the
Supreme Court of Canada where CIPPIC was granted leave to intervene
in three leading fair dealing cases, York University v Access Copyright,
SCC Court File No: 39222, Society of Composers, Authors and Music
Publishers of Canada v Bell Canada, 2012 SCC 36, and Alberta
(Education) v Canadian Copyright Licensing Agency (Access
Copyright), 2012 SCC 36;

2. CIPPIC’s intervention will provide useful and distinct insight on the matters
raised in this motion without raising new issues not already before the Court;

3. If granted leave, CIPPIC will address the following points, which are distinct
from those of other parties:
a. Statutory interpretation of the Copyright Act’s anti-circumvention
provisions must adhere to the Supreme Court of Canada’s guidance of
 3

“large and liberal” construction that balances user and owner rights;

b. A sound and robust statutory interpretation of the anti-circumvention

provisions raises questions about their interaction with the scheme of
user rights encoded within the Act, specifically fair dealing; and

c. A proper construction of the antic-circumvention provisions must be

consistent with Charter values, the principles of federalism, and the
scheme of the Act as a whole;

4. CIPPIC does not seek costs and asks that costs not be awarded against it as a
result of its intervention;

5. Rules 109 and 369 of the Federal Court Rules, SOR/98-106 as amended; and

6. Such further and other grounds as counsel may advise, and which this
Honourable Court may permit.

THE FOLLOWING DOCUMENTARY EVIDENCE will be relied upon in

support of this motion to intervene:

1. The affidavit of Tamir Israel, Staff Lawyer, CIPPIC, sworn June 16, 2021;
and

2. Such further and other material as counsel may advise, and which this
Honourable Court may permit.
 4

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 16th day of 2021

James Plotkin

CAZA SAIKALEY SRL/LLP

Lawyers/Avocats
250-220 Laurier Avenue West
Ottawa, ON K1P 5Z9

Tel: +1 (613) 562-2292

Fax: +1 (613) 562-2087
Email: jplotkin@plaideurs.ca

Counsel for the Proposed Intervener, CIPPIC

 5

SCHEDULE “A”
Court File No. T-1862-15

FEDERAL COURT
SIMPLIFIED ACTION

BETWEEN:

1395804 ONTARIO LTD., operating as BLACKLOCK’S REPORTER

PLAINTIFF

- and -

THE ATTORNEY GENERAL OF CANADA

DEFENDANT

ORDER
UPON MOTION by the moving party, the Samuelson-Glushko Canadian Internet
Policy and Public Interest Clinic (CIPPIC), for an order pursuant to Rule 109 of the
Federal Courts Rules, 1998, SOR/98-106;

THIS COURT GRANTS LEAVE TO INTERVENE to the moving party in this

proceeding on the following terms:

1. CIPPIC shall be permitted to intervene in the hearing of the Defendant’s

motion for summary judgment, filed August 27, 2020;

2. CIPPIC shall take the issues in this action as they are and shall not add to
them;

3. CIPPIC shall be permitted to file a Memorandum of Fact and Law not

exceeding 20 pages;
 6

4. The other parties to this action shall be permitted to file a responding

Memorandum of Fact and Law not exceeding 20 pages within 30 days from
the filing of CIPPIC’s Memorandum of Fact and Law;

5. CIPPIC shall be permitted to present oral arguments at the hearing of this

motion;

6. CIPPIC shall cooperate with other parties and interveners to expedite the
hearing and avoid duplication;
7. CIPPIC shall not seek or be made subject to any order for costs; and

8. CIPPIC shall be served with electronic versions of all materials filed and to be
filed by other parties and interveners in the hearing of the Defendant’s motion
for summary judgment.

____________________________
 7

TO: THE OFFICE OF THE REGISTRY

Federal Court
AND TO MBM Intellectual Property Law LLP
275 Slater Street, 14th Floor
Ottawa, ON K1P 5H9

Scott Miller
Tel: +1 (613) 567-0762
Fax: +1 (613) 563-7671

Counsel for the Plaintiff

AND TO ATTORNEY GENERAL OF CANADA
Department of Justice Canada
Civil Litigation Section
500-50 O’Connor Street
Ottawa, ON K1A 0H8

Alexander Gay
Andrew Gibbs

Tel: +1 (613) 567-0762

Email: Alexander.Gay@justice.gc.ca
Andrew.Gibbs@justice.gc.ca

Counsel for the Defendant

 8

Court File No. T-1862-15

FEDERAL COURT
SIMPLIFIED ACTION

BETWEEN:

1395804 ONTARIO LTD., operating as BLACKLOCK’S REPORTER

PLAINTIFF

- and -

THE ATTORNEY GENERAL OF CANADA

DEFENDANT

AFFIDAVIT OF TAMIR ISRAEL

I, Tamir Israel, of the City of Ottawa, DO SOLEMNLY AFFIRM THAT:

I. INTRODUCTION

1. I am Staff Lawyer at the Samuelson-Glushko Canadian Internet Policy & Public

Interest Clinic (CIPPIC) based at the Centre for Law, Technology and Society
(CLTS) at the University of Ottawa’s Faculty of Law. This Affidavit is sworn in
support of CIPPIC’s motion for leave to intervene in this action.

2. 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.
Where specific CIPPIC activities are referred to below in which I have had no
personal participation, I have familiarized myself with the relevant files, and base
my account thereof on this knowledge.

3. CIPPIC is a legal clinic founded at the University of Ottawa’s Faculty of Law. It

was established in September 2003 with funding from the Ontario Research
 9

Network on Electronic Commerce and an Amazon.com Cy Pres fund with the

purpose of filing voids in public policy debates on technology law issues,
ensuring balance in policy and law-making processes, and providing legal
assistance to under-represented organizations and individuals on matters
involving the intersection of law and technology. In 2007, CIPPIC received
additional funding from the Samuelson-Glushko Foundation, enabling CIPPIC to
continue fulfilling its mandate and to join the international network of Samuelson-
Glushko technology law clinics. CIPPIC currently operates under an Executive
Director, a General Counsel, and a Staff Lawyer, presently Vivek Krishnamurthy,
David Fewer and myself, respectively.

4. CIPPIC’s core mandate is to advocate in the public interest in debates arising at

the intersection of law and technology. CIPPIC has the additional mandate of
providing legal assistance to under-represented organizations and individuals on
law and technology issues, and a tertiary education-based mandate that includes a
teaching and public outreach component. In pursuit of these mandates, CIPPIC
regularly provides expert testimony to parliamentary committees, participates in
regulatory and quasi-judicial proceedings, and conducts strategic interventions
before the courts. CIPPIC is also deeply involved in research and advocacy on the
nature and social impact of technological change, and the manner in which the
evolving legal landscape interacts with the distinct challenges of a technology-
driven world.

5. This motion for summary judgment, and the underlying action, engage the
legislative balance between users’ rights and copyright holders’ rights struck in
the Copyright Act. Examples of relevant CIPPIC expertise include:

a. CIPPIC’s submissions to the House of Commons Standing Committee on

Industry, Science and Technology pursuant to its statutory review of the
Copyright Act (November 2018); and testimony before the House of
Commons Legislative Committee on Bill C-32 (the Copyright
Modernization Act, March 8, 2011); and
 10

b. CIPPIC’s interventions in Alberta (Education) v. Canadian Copyright

Licensing Agency (Access Copyright), 2012 SCC 37 (liability of
educational institutions for copying excerpts of works for student
instruction); Teksavvy Solutions Inc v Bell Media Inc, 2021 FCA 100
(whether the Copyright Act contemplates or precludes a remedy
compelling ISPs to block access to websites alleged to have infringed
copyright); National Post v Fournier, FCA File Nos A-394-12 & A-395-
12 (the obligations imposed on online discussion platforms with respect to
user activity alleged to have infringed the Copyright Act); Rogers
Communications v Voltage Pictures, 2018 SCC 38 (obligations to
imposed on ISPs by the Copyright Act when copyright holders seek their
assistance in identifying alleged infringers).

Additional details of CIPPIC’s general expertise in Internet policy issues is described

below, with particular emphasis on activities that apply the Copyright Act to digital
contexts in a manner that respects its legislative balance.

II. INSTITUTIONAL EXPERTISE

(a) Judicial

6. This Court has previously granted CIPPIC leave to intervene, including in:

(i) Voltage Pictures v Salna, 2019 FC 1047, on the implications of a novel copyright
“reverse” class proceeding for alleged infringers named in the class;

(ii) Voltage v Doe, 2016 FC 881, wherein CIPPIC was granted leave to intervene on
the need for privacy safeguards in the third-party discovery order sought in respect of
a copyright infringement “reverse” class proceeding;

(iii) Voltage v Doe, 2014 FC 161, which addressed the balancing of copyright and
Internet users’ privacy rights with respect to an ISP’s disclosure of the Internet
Protocol addresses associated with downloading activity to copyright holders;

(iv) BMG v Doe, 2004 FC 488, addressing the rights of copyright holders to seek the
 11

third-party disclosure of the personal information of Canadian Internet subscribers

involved in file-sharing.

7. CIPPIC interventions before The Supreme Court of Canada on technology law

matters include:

(i) York University v Access Copyright, SCC Court File No: 39222, on the role of
intermediaries in facilitating user fair dealings for educational purposes;

(ii) Uber Technologies v Heller, 2020 SCC 16, on the extent to which private
contractual restrictions on fair access to justice engage the equitable doctrine of
unconscionability;

(iii) Keatley Surveying Ltd. v Teranet Inc., 2019 SCC 43, on the degree to which
authors’ copyright can be diminished by crown copyright when the government
republishes individuals’ works;

(iv) Rogers Communications Inc v Voltage Pictures, LLC, et al., 2018 SCC 38,
addressing the interpretation of the “notice and notice” regime of the Copyright Act;

(v) Douez v Facebook, Inc, 2017 SCC 33, on consumer access to domestic class
proceedings against a non-negotiable forum selection clause regarding privacy rights
implicit in the Charter;

(vi) Canadian Broadcasting Corporation v SODRAC 2003 Inc, 2015 SCC 57, on the
application of the technological neutrality principle where efficiencies gained from
technological advancements impact on copyright laws;

(vii) Five copyright-related appeals heard in conjunction, which raised issues

related to the application of copyright concepts to a range of digital activities in a
manner that is technologically neutral and respects the legislative balance embedded
in the Copyright Act: Entertainment Software Association v Society of Composers,
Authors and Music Publishers of Canada, 2012 SCC 34; Rogers Communications
Inc. v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35;
Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012
 12

SCC 36; Alberta (Education) v Canadian Copyright Licensing Agency (Access

Copyright), 2012 SCC 36; and Re: Sound v Motion Picture Theatre Associations of
Canada, 2012 SCC 38; and

(viii) Crookes v Newton, 2011 SCC 47, wherein CIPPIC intervened to argue
that more robust action than the mere posting of a hyperlink must occur before a
hyperlink can be held to have published defamatory statements in the linked content.

8. CIPPIC has also been granted intervention status by other courts on related
matters:

(i) Teksavvy Solutions Inc v Bell Media Inc, 2021 FCA 100, on the role of internet
intermediaries in copyright enforcement activities of rights holders in respect of
websites alleged to have infringed copyright;

(ii) Voltage Pictures v Salna, File No A-439-19, on a motion for certification of a

reverse class proceeding for copyright infringement involving file-sharing;

(iii) Cooperstock v United Airlines, Fed. Court App. No. A-262-17, regarding the
application of the Trade-marks Act to online parody in light of implicated consumer
protection and freedom of expression values (discontinued);

(iv) National Post v Fournier, File Nos A-394-12 & A-395-12 (FCA), on the
obligations imposed by copyright law on online discussion forums, touching on
issues of substantial reproduction, intermediary liability, and fair dealing
(discontinued following written submissions); and

(v) BMG v Doe, 2004 FCA 193, on the balance between privacy and copyright
enforcement in the third-party discovery process, taking into account applicable
elements of PIPEDA.

9. CIPPIC has also been active in the courts as counsel to primary parties in
proceedings implicating law and technology more broadly, including:
 13

(i) Bell Canada v Amtelecom, 2015 FCA 126, on the retrospective application of
elements of the CRTC’s Wireless Consumer Protection Code to pre-existing
contractual relationships, in the context of a consumer protection regime applied
to wireless service provider contracts;

(ii) Craig Northey v Sony Music Entertainment Canada Inc et al., Ont. Sup. Ct.
File No CV-080036065100 CP, in which CIPPIC acted as co-counsel for the class
seeking damages from music labels for failure to pay the class licence fees for the
making of mechanical copies of musical works in the forms of CDs; and

(iii) Authors Guild v Google, Inc, No. 05-Civ-8136 (US, SDNY, March 22,
2011), in which CIPPIC acted on behalf of a group of independent Canadian
authors and for the Canadian Association of University Teachers (CAUT) in
opposing the proposed US-based class action settlement agreement that would
have established an intermediary, Google, as a centralized hub for digital books.

(b) Parliamentary Committees and Governmental Consultations

10. CIPPIC has had many opportunities to provide expert testimony to

Parliamentary Committees and other governmental processes regarding the legal
challenges posed by online environments, a sampling of which includes:

(i) submissions to Innovation, Science and Economic Development Canada and

Heritage Canada on proposals to extend the term of Canadian copyright (March
2021);

(ii) submissions to the House of Commons Standing Committee on Industry, Science

and Technology pursuant to its statutory review of the Copyright Act (November
2018);

(iii) testimony before House of Commons Committee on Bill C-32, An Act to amend
the Copyright Act, on how copyright law should not encourage litigation as a business
model, and that digital infrastructure should be content neutral so as to provide wide
incentive for innovation (March 8, 2011);

(iv) submissions to the Parliamentary All-Party Arts Caucus on policy options for
 14

updating Canada’s copyright laws in light of new digital exigencies. Submissions

addressed how to balance competing interests as to protect the legitimate interests of
creators of copyright works, distributors of those works, and downstream authors,
innovators and users online (June 3, 2010);

(v) submissions, with the Public Interest Advocacy Centre (PIAC), to the House of
Commons Standing Committee on Canadian heritage urging them to consider
important public interest implications of proposed copyright law reforms, and to
adopt a balanced approach (October 26, 2004); and

(vi) submissions to the Senate Standing Committee on Social affaires, Science and
Technology on Bill S-9, proposed amendments to the Copyright Act that would give
photographers first ownership of copyright in the photographs they take (November
3, 2004).

(c) Quasi-Judicial Tribunals

11. CIPPIC has participated in various activities before quasi-judicial

administrative tribunals in pursuit of its objectives. A representative sample of
CIPPIC’s advocacy in this field includes:

(i) participated as a party and represented the OpenMedia Engagement Network

before the Canadian Radio-television and Telecommunications Commission (CRTC)
in the regulatory proceeding leading to Telecom Decision CRTC 2018-384, objecting
to a proposed expedited remedy that would compel Canadian Internet service
providers to block access to websites accused of systemically violating copyright;

(ii) represented the Canadian Association of University Teachers (CAUT) and the
Canadian Federation of Students (CFS) before the Copyright Board of Canada,
objecting to a copyright tariff claiming, among other things, that teachers require
authorization for sharing hyperlinks to works with students (Access Copyright Post-
Secondary Educational Institution Tariff, 2011-2013); and

(iii) participated as a party before the Canadian Radio-television Telecommunications

Commission (CRTC) in regulatory proceedings leading to Telecom Regulatory Policy
 15

CRTC 2009-657, Telecom Decision CRTC 2017-105 & Telecom Regulatory Policy
CRTC 2017-104 which, collectively, establish the parameters of Canada’s net
neutrality regulatory framework.

12. In addition to its parliamentary, quasi-judicial and judicial activities, CIPPIC

routinely advises and represents both individuals and organizations on a range of issues
related to online expression and intellectual property, including on the scope and potential
impact of the creation of liability for the circumvention of technical protection measures.

13. Through these activities, CIPPIC has developed substantial expertise in Internet
law in Canada, including specific expertise in the matters raised by this proceeding.

III. CIPPIC’S INTEREST IN THIS ACTION

14. CIPPIC’s long-standing public interest advocacy on copyright law and its
underlying balance, and in particular its work on the legal protection of technological
protection measures, as well as its broader historical concern with matters arising at the
intersection of law and technology is the basis for its intervention in this action.

IV. POSITION AND PROPOSED SUBMISSIONS

15. If granted leave to intervene, CIPPIC will address the following issues:

a. Interpreting the words of the Act in their entire context and harmoniously with
its scheme, object, and the intention of Parliament, CIPPIC will argue that the
Act’s anti-circumvention provisions do not impose liability absent an
infringing purpose on the part of the defendant, such as when a work’s use is
fair dealing. The purpose of copyright law is to balance promoting the public
interest in the encouragement and dissemination of works of arts and intellect
and obtaining a just reward for creators. As such, the Court should interpret
the Act in a “large and liberal” manner balancing user and creator rights.
Specifically, creators’ “right to exclude” must be balanced with users’ right to
access. That balance requires the Court to interpret users’ rights, such as fair
 16

dealing, in a way that avoids rendering those rights illusory or subject to a

copyright owner’s fiat.

b. The Court may have recourse to Charter values in construing statutory

meaning: a statute must be construed with the presumption that Parliament
intended to enact legislation in conformity with the Charter. When faced with
competing interpretations, the Court must adopt the one that embodies the
Charter values at issue.

c. The Court may have recourse to the principles of federalism in construing

statutory meaning: a statute must be construed with a mind to the
constitutionality presumption. Accordingly, where faced with competing
interpretations, a Court must select the interpretation reflecting the pertinent
head of federal or provincial authority and not one that would render the
provision ultra vires.

d. Applying these principles of statutory interpretation to the Act’s anti-

circumvention provisions, CIPPIC will argue that:

i. the amendments to the Act creating the anti-circumvention provisions

reflect the Legislature’s conscious choice to ground liability for the
circumvention of TPMs in a balanced framework that accommodates the
interests of all stakeholders. It does this by tying liability for circumvention
to liability for copyright infringement;

ii. interpreting the anti-circumvention provisions to impose liability only

where an infringement of copyright occurs grounds the anti-circumvention
provisions in a federal head of power, best embodies Charter values and
minimally impairs those values;
 17

iii. interpreting the anti-circumvention provisions to impose liability only

where an infringement of copyright occurs best aligns with the federal
Copyright Clause of the Constitution. Any other interpretation raises
thorny constitutionality questions, which the Court ought to avoid
wherever possible; and

iv. the meaning of “effective” in the definition of “technological protection

measure” in the Act’s anti-circumvention provisions requires appreciable
robustness in any “technology, device or component” that controls access
to (or restricting the doing of an act with) a work.

e. Parliament’s legislative choice instantiates itself directly in the Act at s.

41.1(2): “The owner of the copyright in a [TPM-protected] work … [that] has
been contravened is, subject to this Act and any regulations made under
section 41.21, entitled to all remedies … that are or may be conferred by law
for the infringement of copyright against the person who contravened …”. As
an exception under s. 29 of the Act, fair dealing is thus an exception to the
prohibition on TPM circumvention.

f. This interpretation of the Act’s anti-circumvention provisions is consistent

with the international framework of treaties and trade agreements that obliged
Canada to enact them.

16. CIPPIC is an experienced intervener with a track record for providing useful
submissions distinct from those of other parties to the proceedings in which it intervenes.
In bringing this motion, I am told by CIPPIC’s counsel, David Fewer, that CIPPIC has
coordinated with other parties to this proceeding in order to ensure that its proposed
submissions avoid duplication of their arguments and will continue to do so should it be
granted leave to intervene. Specifically, I am further told by David Fewer that CIPPIC
has communicated with counsel for the Attorney General of Canada to assure CIPPIC
avoids duplication and provides helpful and different submissions. I verily believe this to
be true.
 18

17. I believe CIPPIC’s submissions will be of assistance to the Court in deciding the
important issues raised by this motion. CIPPIC’s submissions will be distinct in that they
will derive from its public interest mandate and address a perspective on which the
Attorney General will not make submissions.

18. CIPPIC will not seek costs and asks that it not have costs awarded against it in the
event that leave to intervene is granted.

19. I make this Affidavit in support of CIPPIC’s Motion for Leave to Intervene in this
motion and for no improper purpose.

Affirmed remotely by James Plotkin of the City )

of Ottawa in the Province of Ontario before me )
at the City of Ottawa in the Province of Ontario )
this th16th day of June, 2021, in accordance ) Tamir Israel
with O. Reg. 431/20, Administering Oath or )
Declaration Remotely.

James Plotkin (LS #69559C), Commissioner for Taking Oaths

 19

Court File No. T-1862-15

FEDERAL COURT
SIMPLIFIED ACTION

BETWEEN:

1395804 ONTARIO LTD., operating as BLACKLOCK’S REPORTER

PLAINTIFF

- and -

THE ATTORNEY GENERAL OF CANADA

DEFENDANT

WRITTEN REPRESENTATIONS

1. The Moving Party, the Samuelson-Glushko Canadian Internet Policy and Public
Interest Clinic (“CIPPIC”), seeks an Order, in the form of Schedule “A” to its
Notice of Motion, for leave to intervene in the hearing of the Defendant’s motion
for summary Judgment, filed August 27, 2020.1

PART 1 – THE FACTS

2. This motion for summary judgment raises issues that are both novel and potentially
wide-ranging in influence, bringing user rights into conflict with the anti-
circumvention provisions of the Copyright Act (the “Act”). The outcome of the
Defendant’s motion for summary judgment will implicate interests beyond those of
the parties to the proceeding. CIPPIC seeks leave to intervene in the Defendant’s
motion for summary judgment to present the public interest dimensions at issue in
the Defendant’s motion.

3. CIPPIC is a legal clinic based at the University of Ottawa. its mandate is to research

1
Notice of Motion, Moving Party’s Motion Record, Tab 1.
 20

and advocate in the public interest on issues arising at the intersection of law and
technology. CIPPIC regularly intervenes before courts, tribunals, and other decision-
making bodies in order to bring forward important public interest perspectives that
might otherwise not be represented. CIPPIC has a particular interest in the legal
issues raised in this proceeding insofar as their determination will be the first time a
Canadian court has assess the interplay between the anti-circumvention provisions of
the Act and an affirmative fair dealing defense.

PART II – POINTS IN ISSUE

4. The only issue in this motion is whether CIPPIC should be granted leave to intervene.

PART III – SUBMISSIONS

5. Under Rule 109 of the Federal Court Rules (“Rules”), the Court has the power to
grant any person leave to intervene in a proceeding.2 Paragraph 109(2)(b) requires a
proposed intervener to describe how its proposed participation will assist the Court in
determining the factual or legal issues before it.3 Rule 3 generally requires that the Rules
be applied “so as to secure the just, most expeditious and least expensive determination
of every proceeding on its merits.”4

6. The test for granting public interest intervener status is flexible and discretionary.
The factors to be considered were affirmed in Sport Maska Inc v Bauer Hockey Corp,
and are listed in Prophet River First Nation v Canada (Attorney General).5 These factors
are non-exhaustive, and their relative weight and emphasis is contextually driven.6 In this
instance, the central consideration is whether the moving party has demonstrated its
proposed intervention will assist the Court in determining the public dimensions of a

2
Federal Court Rules, SOR/98-106, Rule 109.
3
Federal Court Rules, SOR/98-106, paragraph 109(2)(b).
4
Federal Court Rules, SOR/98-106, Rule 3.
5
Sport Maska Inc v Bauer Hockey Corp, 2016 FCA 44, para 40; Prophet River First Nation v Canada
(Attorney General), 2016 FCA 120, paras 5-6.
6
Sport Maska Inc v Bauer Hockey Corp, 2016 FCA 44, para 42.
 21

factual or legal issue before it in an expeditious manner.7

7. It may be sufficient to establish an organization’s capacity to assist the court by

demonstrating that its interest in a proceeding is ‘genuine’ rather than ‘jurisprudential’
in nature,8 based on its institutional competence on the legal or factual matters at issue.9
Where an organization can demonstrate practical experience with the legal context of
its proposed intervention, its interest is ‘genuine’ and indicative of its ability to offer
useful insights on the effects of competing legal interpretations.10 Practical experience
can be demonstrated through ‘on the ground’ experience with the legal or factual
context at issue or through a history of high-profile interventions in appellate courts on
related matters.11 By contrast, where an organization would focus its intervention on
the effect competing interpretations will have on its members or the general state of the
law, its interest will be jurisprudential in nature and insufficient.12

8. A public interest organization must further demonstrate through its proposed

submissions that it will offer useful insights distinct from those of other parties. An
organization can do so by proposing submissions that “invoke a body of jurisprudence
that existing parties have not invoked, ask [the Court] to interpret certain jurisprudence
differently, or acquaint the Court with the larger implications associated with its ruling.”13
The level of granular particularity with which an organization must establish this non-
duplicative utility can vary. Where an organization has demonstrated substantial
institutional expertise, less granular particularity is required.14 Where an organization is
not drawing on substantial institutional expertise in its proposed submissions, it must
7
Sport Maska Inc v Bauer Hockey Corp, 2016 FCA 44, para 40; Lukács v Canada (Transportation
Agency), 2014 FCA 292, para 19; Prophet River First Nation v Canada (Attorney General), 2016 FCA
120, paras 5-6, 9 and 18; Atlas Tube Canada ULC v Canada (National Revenue), 2019 FCA 120, para 6.
8
Prophet River First Nation v Canada (Attorney General), 2016 FCA 120, paras 6 and 20-21.
9
Lukács v Canada (Transportation Agency), 2014 FCA 292, paras 19 and 28-29; Atlas Tube Canada
ULC v Canada (National Revenue), 2019 FCA 120, para 11.
10
Atlas Tube Canada ULC v Canada (National Revenue), 2019 FCA 120, para 17; Lukács v Canada
(Transportation Agency), 2014 FCA 292, para 19.
11
Atlas Tube Canada ULC v Canada (National Revenue), 2019 FCA 120, paras 11 and 17; Lukács v
Canada (Transportation Agency), 2014 FCA 292, para 19.
12
Prophet River First Nation v Canada (Attorney General), 2016 FCA 120, paras 20-22; Canada (Attorney
General) v Canadian Doctors for Refugee Care, 2015 FCA 34, para 30.
13
Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 102, para 49.
14
Atlas Tube Canada ULC v Canada (National Revenue), 2019 FCA 120, para 17; Lukács v Canada
(Transportation Agency), 2014 FCA 292, para 19 and paras 27-29; Gitxaala Nation v Canada, 2015
FCA 73, paras 32 and 34, and paras 21 and 25.
 22

demonstrate its capacity for useful differentiation with greater particularity in its
proposed submissions.15

9. Finally, a number of residual contextual factors are relevant. First, a proposed

intervener cannot expand the issues raised by the parties and should file its motion to
intervene expeditiously so as not to disrupt pre-existing timelines.16 Where a proceeding
raises novel and complex issues with important public dimensions, it becomes
additionally important for the court to be exposed to perspectives beyond those offered
by the parties before it.17

10. CIPPIC’s interest in this proceeding is genuine and arises from its long history of
involvement in online expression, balanced copyright, interventions in judicial matters
raising fair dealing issues, and the copyright revision process that led to the adoption of
the Act’s anti-circumvention provisions at issue in this case. CIPPIC’s historic
involvement includes substantial on-the-ground experience working with entities
impacted by anti-circumvention laws, and has included numerous high profile
interventions in appeals that defined the modern scope of the fair dealing defense.18
CIPPIC has a comparable record of institutional involvement in advocating for
interpretations that fully realize the legislative balance between copyright and users’
rights which permeates the Act.19 CIPPIC will draw on this institutional expertise to
provide the Court with insights into the legislative purpose underpinning the anti-
circumvention and user rights provisions of the Act.20 In addition, CIPPIC’s proposed
submissions (detailed below) invoke a body of jurisprudence, other authorities and
considerations that the parties to the proceeding have not invoked, and will acquaint the
Court with the broader implications raised by its ruling.

15
Prophet River First Nation v Canada (Attorney General), 2016 FCA 120, para 19.
16
Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 174, para 15; Canada (Attorney
General) v Canadian Doctors for Refugee Care, 2015 FCA 34, para 29; Atlas Tube Canada ULC v
Canada (National Revenue), 2019 FCA 120, para 15.
17
Lukács v Canada (Transportation Agency), 2014 FCA 292, para 19; Gitxaala Nation v Canada, 2015
FCA 73, para 35.
18
Affidavit of Tamir Israel, Moving Party's Motion Record, Tab 2, paras 6, 7(i) and (vii), 8(iii), 10,
11(ii) and 12.
19
Affidavit of Tamir Israel, Moving Party's Motion Record, Tab 2, paras 6, 7(i), (iii-iv), (vi-vii), 8(i-
iv), 10(i) and (iii), and 10-12.
20
Atlas Tube Canada ULC v Canada (National Revenue), 2019 FCA 120, para 17.
 23

11. A number of residual contextual factors weigh in favour of granting CIPPIC’s

proposed intervention. CIPPIC has sought leave to intervene in a timely manner, and its
intervention will not impede the just and expeditious determination of the matters before
the Court. The schedule for the hearing of the Defendant’s motion for summary judgment
has been suspended pending the outcome of an appeal of the Prothonotary’s Order of
April 29, 2021, and is not to be set until the outcome of the appeal is known. CIPPIC has
communicated with counsel for the Attorney General of Canada to assure CIPPIC avoids
duplication and provides helpful and different submissions.21 CIPPIC will likewise
communicate with other interveners, if any, who participate in this proceeding.

12. The outcome sought by the Plaintiff in this Action implicates public dimensions
that CIPPIC is well placed to address. The interaction of the anti-circumvention
provisions of the Act with affirmative fair dealing rights has not been previously
addressed in Canada. Given the anti-circumvention provisions’ breadth of application to
myriad subject-matter and media, the outcome on this issue will be felt across Canada
and significantly impact users’ rights.

13. While the Defendant in this proceeding is capable of advancing concerns on its
own behalf, the identity of the Defendant raises complexities with respect to the kinds of
arguments it can offer, particular with respect to the constitutional dimensions of statutory
construction. This suggests that an intervener is best placed to offer these kinds of robust
arguments. Moreover, the wider impacts of the outcome of the Defendant’s motion for
summary judgment in this proceeding will be felt beyond the specific parties to this
motion.

14. CIPPIC’s mandate is to advocate in the public interest on matters arising at the
intersection of law and technology. It is well placed to speak to the issues before the
Court on the motion for summary judgment.

CIPPIC’S PROPOSED SUBMISSIONS LEVERAGE ITS EXPERTISE AND

WILL BE USEFUL AND DISTINCTIVE

15. The grounds for the Defendant’s motion for summary judgment are set out in

21
Affidavit of Tamir Israel, Moving Party's Motion Record, Tab 2, para 16 .
 24

paragraphs 1-16 of the notice of motion, and include:

(i) “1. The Plaintiff has no legal basis to assert a claim against [the Defendant]
for a circumvention of a TPM…”;

(ii) “6. The internal circulation and summarization of articles [the Defendant]
obtained by way of its institutional subscription to the Plaintiff’s website is
protected by the defence of fair use [sic], codified in s. 29 of the Copyright Act,
R.S.C. 1985, c. C-42 and does not constitute copyright infringement”; and

(iii) “14. … the sharing of the password was not a circumvention of a

technological protection measures, as understood under the Copyright Act”.

CIPPIC’s proposed submissions will provide a different yet relevant and valuable
perspective on these grounds without expanding the issues as framed by the parties.

16. Specifically, if granted leave, CIPPIC intends to deliver argument broadly as

follows:

a. Interpreting the words of the Act in their entire context and harmoniously with
the Act’s scheme, object, and the intention of Parliament, CIPPIC will argue
the anti-circumvention provisions do not impose liability absent an infringing
purpose on the part of the defendant, such as when a work’s use is fair
dealing. Copyright law’s purpose is to balance, on one hand, promoting the
public interest in the encouragement and dissemination of works of the arts
and intellect and, on the other hand, obtaining a just reward for creators. As
such, the Act should receive a “large and liberal” interpretation that balances
creators’ “right to exclude” with users’ right to access. That balance requires
the Court to interpret users’ rights, such as fair dealing, in a way that avoids
rendering those rights illusory or subject to a copyright owner’s fiat.

b. The Court should consider Charter values in construing statutory meaning: a

statute must be construed with the presumption that Parliament intended to
 25

enact legislation in conformity with the Charter. When faced with competing
interpretations, the Court must adopt the one that embodies the Charter values
at issue.

c. The Court should consider the principles of federalism in construing statutory

meaning: a statute must be construed with the presumption of
constitutionality. Accordingly, where faced with competing interpretations, a
court must consider the interpretation of a statutory provision that reflects the
pertinent head of federal or provincial authority.

d. Applying these principles of statutory interpretation to the Act’s anti-

circumvention provisions, CIPPIC will argue that:

i. the amendments to the Act creating the anti-circumvention provisions

reflect the Legislature’s conscious choice to ground liability for the
circumvention of TPMs in a balanced framework that accommodates the
interests of all stakeholders. It does this, inter alia, by tying liability for
circumvention to liability for copyright infringement;

ii. interpreting the anti-circumvention provisions to impose liability only

where an infringement of copyright occurs grounds the anti-circumvention
provisions in a federal head of power, best embodies Charter values and
minimally impairs those values;

iii. interpreting the anti-circumvention provisions to impose liability only

where an infringement of copyright occurs best aligns with the federal
Copyright Clause of the Constitution Act, 1867. Any other interpretation
raises thorny constitutionality questions, which the Court ought to avoid
wherever possible; and
 26

iv. the meaning of “effective” in the definition of “technological protection

measure” (“TPM”) in the anti-circumvention provisions of the Act requires
appreciable robustness in any “technology, device or component” that
controls access to (or restricting the doing of an act with) a work.

e. Parliament’s legislative choice instantiates itself directly in the Act at s.

41.1(2): “The owner of the copyright in a [TPM-protected] work … [that] has
been contravened is, subject to this Act and any regulations made under
section 41.21, entitled to all remedies … that are or may be conferred by law
for the infringement of copyright against the person who contravened …”. As
an exception under s. 29 of the Act, fair dealing is thus an exception to the
prohibition on TPM circumvention.

f. This interpretation of the Act’s anti-circumvention provisions is consistent

with the international framework of treaties and trade agreements that obliged
Canada to enact them.

17. Each of these proposed submissions relates directly to the grounds raised in
paragraphs 1 and 6 of the Defendant’s notice of motion for summary judgment.
Specifically, the question of whether a fair dealing may be constrained by a TPM bears
directly on whether there is a “legal basis” to assert a breach of a TPM under the Act in
the presence of fair dealing. Paragraph 16(d)(iv) above additionally goes to the ground
raised in paragraph 14 of the Defendant’s notice of motion for summary judgment: the
question of whether passwords are “effective” TPMs within the meaning of section 41 of
the Act.

18. In addressing these points, CIPPIC will draw on its extensive institutional expertise
and its perspective as an organization whose mandate is to advocate in the public interest.

PART IV – ORDER SOUGHT

19. CIPPIC respectfully requests that its motion for leave to intervene be granted, with
conditions set out in Schedule “A” to its notice of motion.
 27

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 16th day of June, 2021

James Plotkin

CAZA SAIKALEY SRL/LLP

250-220 Laurier Avenue West
Ottawa, ON K1P 5Z9

Tel: +1 (613) 562-2292

Fax: +1 (613) 562-2087
Email: jplotkin@plaideurs.ca

Counsel for the Proposed Intervener, CIPPIC

 28

PART V - AUTHORITIES

Statutory Provisions
1. Federal Court Rules, SOR/98-106, Rules 3, 109 and 369
Case Law
2. Atlas Tube Canada ULC v Canada (National Revenue), 2019 FCA 120
Canada (Attorney General) v Canadian Doctors for Refugee Care, 2015
3.
FCA 34
4. Gitxaala Nation v Canada, 2015 FCA 73
5. Lukács v Canada (Transportation Agency), 2014 FCA 292
6. Prophet River First Nation v Canada (Attorney General), 2016 FCA 120
7. Sport Maska Inc v Bauer Hockey Corp, 2016 FCA 44
8. Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 102
9. Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 174