2017 QCCA 199, 2017 QCCA 199

Unofficial English Translation Société québécoise de gestion collective des droits de reproduction (Copibec) c. Université Laval 2017 QCCA 199 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-009232-163 (200-06-000179-146) DATE: February 8, 2017 CORAM: THE HONOURABLE GUY GAGNON, J.A. DOMINIQUE BÉLANGER, J.A. ROBERT M. MAINVILLE, J.A. SOCIÉTÉ QUÉBÉCOISE DE GESTION COLLECTIVE DES DROITS DE REPRODUCTION (COPIBEC) APPELLANT – Applicant v.

UNIVERSITÉ LAVAL RESPONDENT – Respondent and GUY MARCHAND, known by the artistic pseudonym GUY MARCHAMPS, JEAN- FRÉDÉRIC MESSIER, ÉDITIONS LES HERBES ROUGES INC., LÉMÉAC ÉDITEUR INC., CENTRE FRANÇAIS D’EXPLOITATION DU DROIT DE COPIE (CFC) and REPROBEL IMPLEADED PARTIES – Designated persons JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court (the Honourable Michel Beaupré) rendered on February 26, 2016, dismissing his application for authorization to institute a class action and a judgment rendered on March 25, 2015 dismissing his application for a safeguard order. [ 2 ] For the reasons of Gagnon J.A., with which Bélanger and Mainville JJ.A. agree, THE COURT : [ 3 ] Allows t he appeal from the February 26, 2016 judgment in part, with legal costs; [ 4 ] REVERSES the trial judgment and renders the judgment that should have been rendered; [ 5 ] Authorizes the institution of the class action, with costs to follow the outcome of the trial; [ 6 ] GRANTS the application to amend a pleading and ALLOWS the class to be modified as suggested by the appellant at during the appeal; [ 7 ] Grants the appellant Société québécoise de gestion collective des droits de reproduction (Copibec), Guy Marchand and Jean- Frédéric Messier representative status for the purpose of bringing the class action on behalf of the class hereinafter described: [ translation ] Any natural or legal person who holds or is authorized to represent one or more holders of patrimonial or moral rights in literary (excepting computer programs, but including song lyrics), dramatic, or artistic works (integrated into a literary or dramatic work) whose author was not deceased before January 1, 1964, which the Université Laval and its staff, mandataries and subcontractors, without the authorization of the rights holders, reproduced, made available or communicated to students or other staff members by telecommunication, in paper or digital form, for teaching and research activity at the Université Laval, between June 1, 2014 and the date of the judgment by the Court of Appeal. [ 8 ] Defines the following sub-classes :

A) All natural persons belonging to the described class who have authored literary, dramatic, or artistic works in Canada.

B) All natural and legal persons belonging to the described class who have published literary and dramatic works or who are authorized to represent one or more copyright holders in Canada.

C) All natural or legal persons belonging to the described class who are domiciled outside Canada, including foreign collective societies authorized to represent rights holders in their respective countries. [ 9 ] Identifies the questions of law and fact to be addressed collectively as follows: (

I) Did the Université Laval, its staff, mandataries and sub-contractors, through their education or research activities, infringe the patrimonial rights of the class members under s. 3 of the Copyright Act (

a) by reproducing (

b) and communicating the work by telecommunication, (

c) including by making available to the public by telecommunication, protected literary, dramatic, and artistic works without the authorization of the rights holders or their representatives? (II) Did the Université Laval and its staff, mandataries and sub-contractors, through their teaching and research activities, violate the moral rights of the class members who are authors under s. 14.1 of the Copyright Act (

a) by reproducing, (

b) communicating the work by telecommunication, (

c) including by making available to the public by telecommunication, excerpts of protected literary, dramatic, artistic and musical works without the authorization of the authors or their representatives? [ 10 ] Identifies the conclusions sought on the merits of the class action: • MAINTAIN the class action on behalf and for the benefit of all class members; • Order the respondent the Université Laval, its directors, mandataries, sub-contractors, and staff, including all professors, adjunct professors, lecturers, and clinical lecturers to cease reproducing, in paper or digital form, making available or communicating by telecommunication through its computer network or by other means, all protected literary, dramatic, and artistic works of the class members without having first obtained the requisite authorization; • Order the respondent the Université Laval, its directors, mandataries, sub-contractors, and staff, including all professors, adjunct professors, lecturers, and clinical lecturers to turn over to the applicant all the collective works of texts or any other documents in paper or digital form and any devices or local media storage containing the protected literary, dramatic, and artistic works or parts of works of the class members within thirty (30) days of the judgment to be rendered; • Order the respondent the Université Laval to remit to the applicant, within thirty (30) days of the judgment to be rendered, a sworn statement from its Rector stating that it has removed from its servers any protected literary, dramatic, and artistic works or parts of works of the class members that were reproduced without having obtained the requisite authorizations; • Order the respondent the Université Laval to reimburse the applicant Copibec, within fifteen (15) days of having communicated the supporting documents, for all costs incurred for the destruction, by pulping or other reasonable means, of the counterfeit material; • Order the respondent the Université Laval to inform its staff by personal letter and by posting a message to its intranet and internet websites, within five (5) days of the judgment to be rendered, of the injunctions rendered by the court and to ask for their compliance; • AuthoriZe the collective recovery of the amounts awarded to the class members and AUTHORIZE the applicant to receive said amounts and distribute them among the right-holding class members, in accordance with its usual regulations and practices; • Consequently , CONDEMNS the respondent the Université Laval to pay the following damages to Copibec for the benefit of the class members, and to distribute them among the class members whose works were unlawfully reproduced: (

A) An amount, subject to adjustment, of $1,661,830 (11,217,839 pages copied, subject to adjustment, at a rate of $0.15 per page reproduced, less the amount of $20,846 already paid for 138,973 authorized copies, or $1,661,830). (

B) An additional amount of $15 per continuing education and distance learning student, 20,000 of whom are registered according to the numbers published by the respondent, for an estimated amount of $300,000, subject to adjustment. (

C) An amount of $1,000,000 in exemplary damages. • Condemn the respondent the Université Laval to pay Copibec, for the class members and to be distributed among them, all profits made through the sale of collective works of texts used in classes and unlawfully reproducing literary, dramatic, and artistic works of the class members an amount it estimates, subject to adjustment, at $10 per collective work per course, for an estimated additional amount of $120,000, subject to adjustment; • Condemn the respondent the Université Laval to pay an additional amount of $1,000,000 to Copibec, for the class members and

to be distributed among the authors whose works were unlawfully reproduced, for the violation of their moral rights; • Condemn the respondent the Université Laval to reimburse Copibec and the Fonds d’aide au recours collectif for extrajudicial fees and legal disbursements, and for all extrajudicial fees incurred for the class action of the class represented, including all media publishing fees, expert fees, reasonable travel fees, and reasonable overseas travel for witnesses, if any, as well as for professional fees and judicial costs; • Order the collective enforcement of the judgment, notwithstanding appeal; • The whole with interest from the notice of the application for authorization, as well as the additional indemnity set out in the Civil Code of Québec , except for the exemplary damages and professional fees and costs which will be due as of the judgment; [ 11 ] DETERMINES that the class action must be brought in the judicial district of Quebec; [ 12 ] REFERS the case back to the Associate Chief Justice so that he may designate a case management judge; [ 13 ] REFERS to the next case management judge the issue of the publication of the notice to the members and the opting-out period; [ 14 ] Dismisses the appeal from the judgment rendered on March 25, 2015, with legal costs.

GUY GAGNON, J.A. DOMINIQUE BÉLANGER, J.A. ROBERT M. MAINVILLE, J.A. Mtre Daniel Payette Payette avocats For the appellant Mtre Samuel Massicotte and Mtre David Ferland Stein Monast For the respondent Hearing Date: November 23, 2016 REASONS OF GAGNON, J.A. [ 15 ] The appellant Copibec (“Copibec”) appeals from a judgment of the Superior Court (the Honourable Michel Beaupré) rendered on February 26, 2016, [1] which dismissed its application for authorization to institute a class action against the Université Laval (“the University”).

That same judgment dismissed an application for a safeguard order seeking to compel the University to collate and protect certain information during the proceedings. [ 16 ] Copibec criticized the University for infringing the patrimonial and moral rights of authors by reproducing their works without authorization, thereby breaching the Copyright Act (“ C.A. ”). [2] [ 17 ] At trial, the debate was initiated under the former Code of Civil Procedure but was ultimately decided, as was proper, [3] according to the provisions of the new Code of Civil Procedure (art. 571 et seq . C.C.P. ).

THE FACTS [ 18 ] Copibec is a corporation incorporated under

Part III of the Companies Act . [4] It acts as a collective society within the meaning of the Copyright Act . [5] In this respect, it ensures the collective administration of the copyrights of several authors and associations [6] grouped under its direction. [ 19 ] On behalf of its members, it offers its customers, notably universities, the option of taking out a licence authorizing them to reproduce a repertoire of works in whole or in

part in exchange for the payment of predetermined royalties. It remits 86% of the amounts collected to the copyright holders and keeps 14% as an administrative fee. [ 20 ] This licensing scheme prevailed between the parties from 1999 to 2014.

[ 21 ] During that period, the legislature amended the C.A. to allow “fair dealing” without the holder of the right being allowed to demand compensation, but only if this dealing was in line with the parameters set out in the Act . [7] [ 22 ] On March 10, 2014, the University informed the appellant that it would not be renewing its overall licence, which was set to end on May 31 of that year.

On May 21, 2014, to get around this licensing scheme, the University adopted a policy in favour of its students and teaching staff to promote fair dealing with course materials drawn from works protected under the C.A. (“the Policy”). [8] In the policy, the University defined its objectives as follows: [ translation ] The purpose of the Policy is to state the importance that the University places on protecting authors’ copyrights, to establish which choices Teaching Staff should prioritize regarding the use of the Work of Others for the purposes of teaching, learning, research and private study, and to define an administrative scheme for fair dealing with the work of others for these purposes.

To make these objectives easier to attain, the Policy recalls several basic copyright principles, clearly explains the University’s expectations vis-à-vis its Teaching Staff with respect to copyright compliance and lawful fair dealing with the Work of Others in course materials.

It also provides guidelines for achieving these objectives by explaining, for administrative purposes, some of the user rights that are vaguely defined in the Copyright Act and in the case law, and offers information on resources available to Teaching Staff if they have any questions about the Policy. [9] [ 23 ] The Policy establishes restrictive administrative guidelines for the University and its users governing “fair dealing” with a work.

It also sets out an authorization procedure for cases where the established guidelines might need to be exceeded. [ 24 ] The University also adopted a by-law to facilitate access to protected works (“the By-law”). [10] The By-law provides for the establishment of a Copyright Office whose [ translation ] “primary responsibilities are to ensure compliance with copyright and the Policy, and to be a frontline go-to resource available to the Teaching Staff in order to ensure compliance with the By-law and the Policy”. [11] [ 25 ] Despite the adoption of the Policy and its accompanying By-law, Copibec argues that the reproduction of works by the University breaches the protections under the C.A. , the general rule being drafted as follows: 27(1) It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do. [ 26 ] The originating class action described the class Copibec sought to represent as follows: [ translation ] Any natural or legal person who holds or is authorized to represent one or more holders of patrimonial or moral rights in literary (excepting computer programs, but including song lyrics), dramatic, or artistic works (integrated into literary or dramatic works) protected by copyright, that the Université Laval and its staff, mandataries and sub-contractors, without authorization, reproduced, made available or communicated by telecommunication to students or other staff members, in paper or digital form, for teaching and research activities at the Université Laval since June 1, 2014. [ 27 ] On appeal, Copibec seeks to modify this class.

This is the new description being proposed: [ translation ] Any natural or legal person who holds or is authorized to represent one or more holders of patrimonial or moral rights in literary (excepting computer programs, but including song lyrics), dramatic, or artistic works (integrated into literary or dramatic works) whose author was not deceased before January 1, 1964 , which the Université Laval and its staff, mandataries and sub-contractors, without the authorization of the rights holders , reproduced, made available or communicated to students or other staff by telecommunication, in paper or digital form, for teaching and research activity at the Université Laval since June 1, 2014. [12] [Transcription true to the original] [ 28 ] According to Copibec, the class may include up to 1,971 Quebec authors and an undetermined number of Canadian and foreign authors.

In addition to these claimants, Copibec would add no fewer than 1,503 publishers, including 327 from Quebec, and a dozen foreign collective production societies, along with any other authors, publishers or collective societies worldwide that have suffered moral damage, as well as their assigns, successors, or heirs. [ 29 ] Copibec’s application also reveals the possibility of the class being subdivided into several sub-classes:

A) All natural persons belonging to the described class who have authored literary, dramatic, or artistic works in Canada.

B) All natural and legal persons belonging to the described class who have published literary and dramatic works or who are authorized to represent one or more copyright holders in Canada.

C) All natural or legal persons belonging to the described class who are domiciled outside Canada, including foreign collective societies who are authorized to represent rights holders in their respective countries And any other sub-class that the Court may determine with respect to the questions of fact and law raised by the class action. [13]

[ 30 ] Should authorization be granted, Copibec intends to request that the trial judge rule on the following two questions, which it considers to be identical, similar or related for all class members (and those who make up the sub-classes): (

I) Did the Université Laval and its staff, mandataries and sub-contractors, in their teaching or research activities, infringe the patrimonial rights of class members under s. 3 of the Copyright Act (

a) by reproducing (

b) and communicating the work by telecommunication, (

c) including by making available to the public by telecommunication, protected literary, dramatic, and artistic works without the authorization of the rights holders or their representatives? (II) Did the Université Laval and its staff, mandataries and sub-contractors, in their teaching and research activities, violate the moral rights of class members who are authors under s. 14.1 of the Copyright Act . (

a) by reproducing, (

b) communicating the work by telecommunication, (

c) including by making the work available to the public by telecommunication, excerpts of protected literary, dramatic, artistic and musical works without the authorization of the authors or their representatives? [14] [ 31 ] It should be added that on February 3, 2015, the parties agreed on certain safeguard measures which were ratified in a Superior Court judgment. [15] Among other things, the agreement is intended to compel the University to preserve evidence during the trial proceedings. [16] The University has also agreed to remain bound by this agreement during the appeal proceedings. [ 32 ] It is also worth noting that on March 25, 2015, a second Superior Court judgment dismissed an application for an additional safeguard order in which Copibec requested that the University prepare a digital register identifying and collating the works reproduced. [17] Copibec has also appealed from that judgment.

THE JUDGMENT UNDER APPEAL [ 33 ] The judge acknowledged that the facts alleged in the application appear to justify the conclusions sought (article 575(2) C.C.P .). He also accepted Copibec’s submission that the composition of the class makes it difficult or impracticable to apply the rules for mandates to take

part in judicial proceedings on behalf of others (article 575(3) C.C.P. ). He was of the view, however, that Copibec had failed to meet its burden of demonstration by proposing questions common to the class members (art. 575(1) C.C.P .) and by failing to identify a representative with sufficient interest to properly represent the class members (art. 575(4) C.C.P .). Because the main application was dismissed, the judge concluded that the ancillary application for a safeguard order also had to fail.

Article 575(1) C.C.P. [ 34 ] The judge summarized the syllogism submitted by Copibec as follows: [ translation ] 1) The members of the sub-classes hold copyright in works protected under the C.A. , either as actual authors of works or because of rights assigned to them by the authors; 2) The University has reproduced protected works or significant parts thereof without the authorization of the authors, copyright owners, or Copibec; 3) The University has thus infringed the rights of the members of the sub-classes in violation of ss. 3 and 27 of the C.A. , thereby giving rise to the conclusions sought. [18] [ 35 ] He noted that Copibec’s pleading did not seek to annul the Policy and By-law and that it did not submit any common issue with respect to these two elements that the application for authorization could not ignore. [ 36 ] Even more fundamentally, he gave three reasons why the condition under 575(1) C.C.P. was not met.

First, he found that there was no common question likely to move the action towards resolution. Second, considering the true nature of the debate before him, the principle of proportionality also weighed in favour of refusing the authorization due to the presence of a multitude of individual questions and [ translation ] “exponential” questions requiring case-by-case analysis. Finally, even defining the class in relation to the common questions Copibec submitted was problematic.

Article 575(4) C.C.P. [ 37 ] The judge pointed out that the executive director of Copibec admitted that the company held no copyrights and did not operate in the publishing world. Thus, Copibec did not appear to have sufficient interest to launch a class action based in copyright.

[ 38 ] The judge added that none of the natural persons identified in Copibec’s pleadings as potential class representatives (the impleaded parties) were directors, officers, managers or partners of this company, as

article 571 C.C.P . requires [ 39 ] Finally, the judge held that, in any event, Copibec and the impleaded parties did not have sufficient interest to bring a legal action, at least with respect to the claim based on moral rights.

This assertion is grounded in the principle that this type of right cannot be assigned under the C.A. [19] GROUNDS OF APPEAL [ 40 ] The two main grounds of appeal submitted by Copibec can be summed up by stating that the judge failed to apply the conditions for authorization set out in paragraphs 575(1) and (4) C.C.P . fairly. [ 41 ] Should the Court agree with Copibec’s arguments, the latter requests that we reconsider its application for a safeguard order, which was dismissed in first instance. ANALYSIS [ 42 ] The judge rendered a beautifully crafted judgment.

His review of the case shows a solid understanding of the issues opposing the parties. That said, and I write this with respect for his opinion, a close reading of the judgment reveals that before finding that the application before him should be dismissed, the judge often encroached upon considerations that should have been left for the trial judge to assess.

The judgment under appeal also reveals that the judge imposed an evidentiary burden on Copibec at the authorization stage that went beyond the requirements established in case law. [ 43 ] It also bears noting that the judge did not have the benefit of the judgments of this Court in Sibiga [20] and Charles , [21] rendered after the judgment under appeal, which applied the teachings of the Supreme Court in Infineon [22] and Vivendi . [23] [ 44 ] For the rest, I must bear in mind the standard of review applicable to judgments refusing authorization to institute a class action, as identified by my colleague Kasirer J.A. in Sibiga : [33] The respondents are right to say that, barring an error of law, this Court owes deference to the motion judge’s decision, given the inherently discretionary character of his findings relating to the criteria for authorization set forth in

article 1003 C.C.P. [34] While the compass for appellate intervention is indeed limited, so too is the role of the motion judge. In clear terms, particularly since its decision in Infineon , the Supreme Court has repeatedly emphasized that the judge’s function at the authorization stage is only one of filtering out untenable claims.

The Court stressed that the law does not impose an onerous burden on the person seeking authorization. “He or she need only establish a ‘prima facie case’ or an ‘arguable case’”, wrote LeBel and Wagner JJ. in Vivendi , specifying that a motion judge “must not deal with the merits of the case, as they are to be considered only after the motion for authorization is granted”. [35] Since Infineon , our Court has consistently relied upon this standard, invoking it when authorization has been wrongly denied because too high a burden was imposed. [24] [Citations omitted]

i) The law [ 45 ] Before turning to the analysis as such, a few legal precisions should be made regarding general copyright principles and their potential application to class actions. The Copyright Act [ 46 ] It is appropriate to provide a broad outline of some general rules drawn from the C.A. Basically, this statute grants the author of a work or the holder of a license the exclusive right to authorize the reproduction of all or a “substantial part’’ of the work, as the case may be: Copyright Act R.S.C. 1985, c. C-42

Loi sur le droit d’auteur L.R.C. 1985, ch. C-42 Copyright in works Droit d’auteur sur l’œuvre 3

(1) For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right 3

(1) Le droit d’auteur sur l’œuvre comporte le droit exclusif de produire ou reproduire la totalité ou une

partie importante de l’œuvre, sous une forme matérielle quelconque, d’en exécuter ou d’en représenter la totalité ou une

partie importante en public et, si l’œuvre n’est pas publiée, d’en publier la totalité ou une

partie importante; ce droit comporte, en outre, le droit exclusif : (

a) to produce, reproduce, perform or publish any translation of the work,

a) de produire, reproduire, représenter ou publier une traduction de l’œuvre; (

b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,

b) s’il s’agit d’une œuvre dramatique, de la transformer en un roman ou en une autre œuvre non dramatique;

(

c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,

c) s’il s’agit d’un roman ou d’une autre œuvre non dramatique, ou d’une œuvre artistique, de transformer cette œuvre en une œuvre dramatique, par voie de représentation publique ou autrement; (

d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,

d) s’il s’agit d’une œuvre littéraire, dramatique ou musicale, d’en faire un enregistrement sonore, film cinématographique ou autre support, à l’aide desquels l’œuvre peut être reproduite, représentée ou exécutée mécaniquement; (

e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,

e) s’il s’agit d’une œuvre littéraire, dramatique, musicale ou artistique, de reproduire, d’adapter et de présenter publiquement l’œuvre en tant qu’œuvre cinématographique; (

f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

f) de communiquer au public, par télécommunication, une œuvre littéraire, dramatique, musicale ou artistique; (

g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,

g) de présenter au public lors d’une exposition, à des fins autres que la vente ou la location, une œuvre artistique – autre qu’une carte géographique ou marine, un plan ou un graphique – créée après le 7 juin 1988; (

h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program,

h) de louer un programme d’ordinateur qui peut être reproduit dans le cadre normal de son utilisation, sauf la reproduction effectuée pendant son exécution avec un ordinateur ou autre machine ou appareil; (

i) in the case of a musical work, to rent out a sound recording in which the work is embodied, and

i) s’il s’agit d’une œuvre musicale, d’en louer tout enregistrement sonore; (

j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner,

j) s’il s’agit d’une œuvre sous forme d’un objet tangible, d’effectuer le transfert de propriété, notamment par vente, de l’objet, dans la mesure où la propriété de celui-ci n’a jamais été transférée au Canada ou à l’étranger avec l’autorisation du titulaire du droit d’auteur. and to authorize any such acts. Est inclus dans la présente définition le droit exclusif d’autoriser ces actes. […] […] Ownership of Copyright Possession du droit d’auteur 13 [...] 13 […] Assignments and licences Cession et licences

(4) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium or sector of the market or other limitations relating to the scope of the assignment, and either for the whole term of the copyright or for any other part thereof, and may grant any interest in the right by licence, but no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by the owner’s duly authorized agent.

(4) Le titulaire du droit d’auteur sur une œuvre peut céder ce droit, en totalité ou en partie, d’une façon générale ou avec des restrictions relatives au territoire, au support matériel, au secteur du marché ou à la portée de la cession, pour la durée complète ou partielle de la protection; il peut également concéder, par une licence, un intérêt quelconque dans ce droit; mais la cession ou la concession n’est valable que si elle est rédigée par écrit et signée par le titulaire du droit qui en fait l’objet, ou par son agent dûment autorisé. [...] […] Exclusive licence Licence exclusive

(7) For greater certainty, it is deemed always to have been the law that a grant of an exclusive licence in a copyright constitutes the grant of an interest in the copyright by licence.

(7) Il est entendu que la concession d’une licence exclusive sur un droit d’auteur est réputée toujours avoir valu concession par licence d’un intérêt dans ce droit d’auteur. [ 47 ] The C.A. also presumes that the reproduction of a work in whole or in part without the consent of the owner of the copyright is a copyright infringement. [25] There is an exception to this rule, [26] however, and it was raised by the University during the debate on the application for authorization.

It involves allowing the reproduction of certain works by applying the notion of “fair dealing” for the purpose of teaching, under the conditions set out in the statute and without infringing the protection of the originality and integrity assigned to works by the C.A. : Research, private study, etc. Étude privée, recherche, etc.

29 Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright. 29 L’utilisation équitable d’une œuvre ou de tout autre objet du droit d’auteur aux fins d’étude privée, de recherche, d’éducation, de parodie ou de satire ne constitue pas une violation du droit d’auteur. [...] […] Reproduction for instruction Reproduction à des fins pédagogiques 29.4

(1) It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work, or do any other necessary act, in order to display it. 29.4

(1) Ne constitue pas une violation du droit d’auteur le fait, pour un établissement d’enseignement ou une personne agissant sous l’autorité de celui-ci, de reproduire une œuvre pour la présenter visuellement à des fins pédagogiques et dans les locaux de l’établissement et d’accomplir tout autre acte nécessaire pour la présenter à ces fins. Reproduction for examinations, etc. Questions d’examen

(2) It is not an infringement of copyright for an educational institution or a person acting under its authority to

(2) Ne constituent pas des violations du droit d’auteur, si elles sont faites par un établissement d’enseignement ou une personne agissant sous l’autorité de celui-ci dans le cadre d’un examen ou d’un contrôle : (

a) reproduce, translate or perform in public on the premises of the educational institution, or

a) la reproduction, la traduction ou l’exécution en public d’une œuvre ou de tout autre objet du droit d’auteur dans les locaux de l’établissement ; (

b) communicate by telecommuni​cation to the public situated on the premises of the educational institution

b) la communication par télécommuni​cation d’une œuvre ou de tout autre objet du droit [right] d’auteur au public se trouvant dans les locaux de l’établissement. a work or other subject-matter as required for a test or examination. If work commercially available Accessibilité sur le marché

(3) Except in the case of manual reproduction, the exemption from copyright infringement provided by subsections (1) and (2) does not apply if the work or other subject-matter is commercially available, within the meaning of paragraph (

a) of the definition commercially available in

section 2, in a medium that is appropriate for the purposes referred to in those subsections. 3) Sauf cas de reproduction manuscrite, les exceptions prévues aux paragraphes (1) et (2) ne s’appliquent pas si l’œuvre ou l’autre objet du droit d’auteur sont accessibles sur le marché – au sens de l’alinéa a) de la définition de ce terme à l’article 2 – sur un support approprié, aux fins visées par ces dispositions. [ 48 ] Copibec’s proposed class action also raises the question of the violation of the author’s moral rights. The C.A. states the following on this subject: Moral rights Droits moraux 14.1

(1) The author of a work has, subject to

section 28.2, the right to the integrity of the work and, in connection with

an act mentioned in

section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous. 14.1

(1) L’auteur d’une œuvre a le droit, sous réserve de l’article 28.2, à l’intégrité de l’œuvre et, à l’égard de tout acte mentionné à l’article 3, le droit, compte tenu des usages raisonnables, d’en revendiquer, même sous pseudonyme, la création, ainsi que le droit à l’anonymat. No assignment of moral rights Incessibilité

(2) Moral rights may not be assigned but may be waived in whole or in part.

(2) Les droits moraux sont incessibles; ils sont toutefois susceptibles de renonciation, en tout ou en partie. [ 49 ] Finally, the statute sets out a number of presumptions to facilitate the bringing of a legal action arguing copyright infringement and the violation of moral rights: Copyright Droit d’auteur 34

(1) Where copyright has been infringed, the owner of the copyright is, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right. 34

(1) En cas de violation d’un droit d’auteur, le titulaire du droit est admis, sous réserve des autres dispositions de la présente loi, à exercer tous les recours — en vue notamment d’une injonction, de dommages-intérêts, d’une reddition de compte ou d’une remise — que la loi accorde ou peut accorder pour la violation d’un droit. Moral rights Droits moraux

(2) In any proceedings for an infringement ofmoral rights, the court may grant to the holder ofthose rights all remedies by way of injunction,damages, accounts, delivery up and otherwisethat are or may be conferred by law for theinfringement of a right.

(2) Le tribunal saisi d’un recours en violation desdroits moraux peut accorder au titulaire de cesdroits les réparations qu’il pourrait accorder, parvoie d’injonction, de dommages-intérêts, dereddition de compte, de remise ou autrement, etque la loi prévoit ou peut prévoir pour laviolation d’un droit.[...] […]Presumptions respecting copyright andownership Présomption de propriété 34.1

(1) In any civil proceedings taken under thisAct in which the defendant puts in issue eitherthe existence of the copyright or the title of theplaintiff to it, 34.1

(1) Dans toute procédure civile engagée envertu de la présente loi où le défendeur contestel’existence du droit d’auteur ou la qualité dudemandeur :(

a) copyright shall be presumed, unless thecontrary is proved, to subsist in the work,performer’s performance, sound recording orcommunication signal, as the case may be; and

a) l’œuvre, la prestation, l’enregistre​ment sonoreou le signal de communication, selon le cas, est,jusqu’à preuve contraire, présumé être protégépar le droit [right] d’auteur;

b) the author, performer, maker or broadcaster,as the case may be, shall, unless the contrary isproved, be presumed to be the owner of thecopyright.

b) l’auteur, l’artiste-interprète, le producteur oule radiodiffuseur, selon le cas, est, jusqu’àpreuve contraire, réputé être titulaire de ce droitd’auteur. Class actions [50] With respect to the law applicable to the authorization of class actions, in Vivendi[27] the Supreme Court recalled that theC.C.P. did not necessarily require that the answer to the question raised be common to all class members.

The only condition imposed byart. 575(1) C.C.P., which must be read with an open mind and goodwill, requires the identification of a question that can serve toadvance the resolution of a not insignificant portion of the dispute with respect to all class members.[28] The Supreme Court summarizedthis idea as follows: [58] There is one common theme in the Quebec decisions, namely that the C.C.P.’s requirements for class actions are flexible. As aresult, even where circumstances vary from one group member to another, a class action can be authorized if some of the questions arecommon: Riendeau v.

Compagnie de la Baie d’Hudson, (QC CA), (Que. C.A.), at para. 35; Comitéd’environnement de La Baie, at p. 659. To meet the commonality requirement of art. 1003(

a) C.C.P., the applicant must show that anaspect of the case lends itself to a collective decision and that once a decision has been reached on that aspect, the parties will haveresolved a not insignificant portion of the dispute: Harmegnies, at para. 54; see also Lallier v. Volkswagen Canada inc., 2007 QCCA920, [2007] R.J.Q. 1490, paras. 17-21; Del Guidice v. Honda Canada inc., 2007 QCCA 922, [2007] R.J.Q. 1496, para. 49; Kelly v.Communauté des Sœurs de la Charité de Québec, [1995] J.Q. no 3377 (QL), at para. 33. All that is needed in order to meet therequirement of art. 1003(

a) C.C.P. is therefore that there be an identical, related or similar question of law or fact, unless that questionwould play only an insignificant role in the outcome of the class action. It is not necessary that the question make a complete resolutionof the case possible: Collectif de défense des droits de la Montérégie (CDDM), at paras. 22-23. [59] In short, it can be concluded that the common questions do not have to lead to common answers. At the authorization stage, theapproach taken to the commonality requirement in Quebec civil procedure is a flexible one. As a result, the criterion of art. 1003(

a) maybe met even if the common questions raised by the class action require nuanced answers for the various members of the group. [60] In light of these principles, we are of the opinion that the motion judge was mistaken in emphasizing the possibility thatnumerous individual questions would ultimately have to be analyzed. He should instead have inquired into whether the conditionprovided for in art. 1003(

a) was met, that is, whether the applicant had established the existence of a common question that would serveto advance the resolution of the litigation with respect to all the members of the group, and that would not play an insignificant role in theoutcome of the case.[29] [Emphasis mine] [51] It appears from the above that the threshold to establish the existence of a common question is low, and the presence of a singleidentical, similar, or related question is enough to grant authorization, provided it is significant enough to affect the outcome of the classaction.[30] Therefore, at the initial stage it is not necessary for the applicant to show that the answer to the question will itself offer acomplete solution to the whole dispute,[31] just as it is not mandatory for the question submitted to be common to all class members.[32]As the law states, it may be merely “related”. [52] In Sibiga, Kasirer J.A. recalled the importance of maintaining a liberal approach when deciding whether the common questionrequirement has been met: [123] The judge did not apply this test of a single, significant common question but focussed instead on what he presumed to bedisparate contractual arrangement amongst members of the class that, he wrote, precluded him on finding commonality.

Again inVivendi, the Supreme Court warned against this kind of analysis that risks overemphasizing variation between members of the class andlosing sight of one or more common questions that will advance the class action. Moreover in Infineon, the Court held that it is notnecessary that the member of the class be in the same situation but that it is enough that they be in a sufficiently similar situation suchthat a common question for which the class action seeks answers can be identified. “At the authorization stage” wrote the SupremeCourt, “the threshold requirement for common questions is low”. [33]

[Emphasis mine] [ 53 ] Vivendi also added that “the motion judge cannot rely on the principle of proportionality to refuse to authorize an action that otherwise meets the established criteria.” [34] [ 54 ] This appeal also – and, I would add, once again – raises the question of the representative’s capacity to act on behalf of the class. I will address this condition in greater detail when discussing the involvement of Copibec and the impleaded parties in their dispute with the University.

First, it is relevant to recall the broad principles relating to this requirement as established by the case law. [ 55 ] Like its former version, the Code of Civil Procedure requires that applicants show that they are adequate representatives. [35] Three factors must be considered in deciding this issue.

First, the applicant must demonstrate that he or she (1) has sufficient interest in the suit, (2) has the competence necessary to move the file forward with legal counsel and (3) is free of any conflict of interest with the class members. [36] In this case, only the first factor is at play on appeal. [ 56 ] On this point, the Supreme Court recalls that “no proposed representative should be excluded unless his or her interest or competence is such that the case could not possibly proceed fairly.” [37] [ 57 ] The result of the foregoing is that a representative need not be the best possible, let alone ideal; [38] their interest must be analyzed in light of the specific context of the class action.

Case law even asserts that this requirement is based on criteria with very low thresholds. [39] Once again, Kasirer J.A. has aptly summarized its application: [39] In fairness to the judge, it was not until after the judgment in appeal that the Supreme Court set aside Agropur in definitive terms. In Bank of Montreal v. Marcotte , the Court held that the notion of sufficient interest in

article 55 C.C.P . must be adapted to the collective and representative character of a class action. As long as the appellant satisfies the criteria in

article 1003, it was open to the judge to authorize the class action even if she herself did not have a direct cause of action against each defendant . [40] [Citation omitted; emphasis mine] [ 58 ] Let us now take a closer look at the considerations that led the judge to refuse the authorization sought by Copibec. ii) The identical, similar or related questions [ 59 ] The judge found that the questions submitted by Copibec would not resolve the actual issue in dispute, in this case, the importance of the reproduction of [ translation ] “each” part of the work.

He also considered that the answer to the questions raised did not lend itself to a collective approach as it would require case-by-case assessment.

The judge expressed himself as follows: [ translation ] [86] In this case, even if the Court were to answer the common questions prepared by Copibec in the affirmative and consequently find that the University did not obtain authorization from the persons designated to represent the authors, publishers, or copyright owners outside Canada prior to reproducing the works in which those persons have or have been assigned copyright, by law “once a decision has been reached on that aspect”, the parties will not have “resolved a not insignificant portion of the dispute”.

A ruling on the absence of authorization would in fact have only a negligible impact, if any at all, on the outcome of the members’ action because the dispute as to the University’s fault, in this case the copyright infringement in breach of the CA , would remain, given that the questions about the “original” nature of each work, the determination of the “importance” of each reproduced portion of the work, and the University’s right to fair dealing with these works would remain unanswered. [87] Furthermore, according to the applicable law, these questions require an individual assessment of the circumstances specific to each work and each member.

Thus, the University’s fault and liability with respect to each of the members, and therefore the right of each member to the conclusions sought, cannot arise from a “collective decision” that would advance the resolution of the dispute for “all the members of the group”. [...] [107] Contrary to what was found by the Supreme Court in Vivendi or by the Court of Appeal in its recent judgment in Masella concerning the analysis undertaken by the authorization judge, the Court does not find in this case and at this stage of verification and filtering the dispute that the right of the designated persons and members of the sub-classes to the claims and remedies sought is non- existent or that they “did not crystallize”, and does not adopt the University’s submissions on the merits of the case, but finds instead that, at their very core, the common questions submitted by Copibec will not resolve a not insignificant portion of the dispute for all the members of the group so as to advance its resolution for all the members. [41] [Citations omitted] [ 60 ] With respect, I find that in determining the commonality of the questions submitted by Copibec the judge wandered into the merits of the dispute.

In so doing, he strayed from the simple standard of [ translation ] “demonstration” or a “ prima facie case”. For my part, I find that Copibec’s demonstration in first instance was enough to conclude that the requirement in 575(1) C.C.P . had been met. I will explain. [ 61 ] To start, and this is striking, I note the similarities between the questions submitted by Copibec and those submitted before the Ontario Court of Justice in Waldman . [42] That case dealt with an application for authorization brought by Mr.

Waldman to institute a class action against Thomson Reuters, which was accused of having infringed the C.A. “by making available, without permission and for a fee, copies of court documents authorized by the lawyers and the law firms”. The authorizing judge accepted the following questions as being common to all the class members:

[176] I conclude that within proposed question 3, there are certifiable common issues as follows: Thomson’s Conduct Did Thomson through its Litigator service reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold itself out as the author or owner of court documents?

Did Thomson through its Litigator service authorize subscribers to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold themselves out as the author or owner of court documents? [ 62 ] This wording is similar to that used by Copibec for its common questions. [ 63 ] Despite this similarity, the judge did not follow the Ontario judgment on the ground that the issue in dispute before that court concerned [ translation ] “false representations and the usurpation of copyright” [43] which is different from the allegations Copibec makes against the University.

I can easily understand that the nature of the infringement is of some importance when identifying damages and establishing prejudice. As a matter of principle, however, there is no difference between copyright infringement by misappropriation and unauthorized reproduction of a work. Both violate the prohibition under s. 27(1) C.A. [ 64 ] In the case before us, I find that the trial judge was rather strict in his consideration of the authorization criteria. [ 65 ] In particular, the judge made much of the University’s right to rely on a fair dealing process, as authorized by its Policy.

He held that the application of this Policy, adopted in accordance with s. 29 of the C.A. , raises different sub-questions that do not lend themselves to a collective decision: [ translation ] [38] In the meantime, on July 12, 2012, just before the last licence binding the parties came into effect, the Supreme Court of Canada rendered five (5) copyright judgments, which the well-versed refer to as the “Copyright Pentalogy”. It is enough for now to point out that in two of these judgments in particular – Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) and Socan v.

Bell Canada – the Supreme Court reiterated and clarified the scope of its 2004 judgment in CCH v.

Law Society of Upper Canada and confirmed that the exceptions under s. 29 of the CA , which allow for fair dealing (“utilisation équitable” in the French version) with a protected work for specified purposes, without the need to seek authorization from the copyright holder or to compensate the copyright holder for its use, must not be interpreted restrictively and that these exceptions do not simply constitute a technical defence against an accusation of copyright infringement, but actually a user’s right. [...] [87] Furthermore, according to the applicable law, these questions require an individual assessment of the circumstances specific to each work and each member.

Thus, the fault and liability of the University toward each of the members, and therefore the right of each member to the conclusions sought, cannot arise from a “collective decision” that would advance the resolution of the dispute for “all the members of the group”. [...] [95] As the Supreme Court highlighted, the fair dealing exception for the purposes set out under s. 29 of the CA is not a simple defence, but a right.

The reproduction of a protected work covered by the fair dealing exception “does not infringe copyright”. [96] And whether the dealing of a reproduction is fair cannot arise from an in abstracto analysis of the application of a normative rule; “whether something is fair is a question of fact and depends on the facts of each case”, as measured by six (6) criteria confirmed by the Supreme Court of Canada, which, moreover, are not exhaustive.

It is a matter of responding to the following questions: - What is the purpose of the dealing? - What is the character of the dealing? - What is the amount of the dealing? - Are there alternatives to the dealing? - What is the nature of the work in question? and, - What is the effect of the dealing on the work in question? [97] Based on the situation of the designated persons, none of these questions lend themselves to a “collective decision” that would settle “a not insignificant portion of the dispute” for all members of the group. [98] This observation, combined with a significant number of possible permutations depending on the situation of each member of the proposed class, justifies a conclusion that the requirement under 575.1 C.C.P ., analyzed together with the proportionality requirement, has not been met.

For further confirmation, it need only be noted that the president of Copibec’s board of directors, in her letter to the president of the University board, R-9 dated May 14, 2014, stated that if Copibec did not grant a licence, University staff would have to review a number of works – she estimated about 7,200 [ translation ] – “one by one”. In this case, the preceding questions should be analyzed and the criteria for fair dealing weighed in light of an even higher number of works, because the number quoted represents only the number of works in Copibec’s repertoire. The exercise would be exponential. [...]

[107] Contrary to what was found by the Supreme Court in Vivendi or by the Court of Appeal in its recent judgment in Masella concerning the analysis undertaken by the authorization judge, the Court does not find in this case and at this stage of verification and filtering the dispute that the right of the designated persons and members of the sub-classes to the claims and remedies sought is non- existent or that they “did not crystallize”, and does not adopt the University’s submissions on the merits of the case, but finds instead that, at their very core, the common questions submitted by Copibec will not resolve a not insignificant portion of the dispute for all the members of the group so as to advance its resolution for all members. [44] [Citations omitted] [ 66 ] I find that this way of seeing things wrongly anticipates the University’s defence, reverses of the burden of proof that was not Copibec’s, and neglects to take into consideration the triple presumption which benefited Copibec at the authorization stage.

The “fair dealing” exception [ 67 ] Like the trial judge, I recognize that fair dealing is a right that is available to the University.

However, procedurally speaking, it is up to the University to raise this right to show that it meets the conditions for this exception to apply. [45] [ 68 ] The judge therefore erred in equating Copibec’s allegation of unlawful reproduction, subject to a simple prima facie demonstration at the authorization stage, with the University’s allegation concerning its right to fair dealing with the works, which will have to be proven on a balance of probabilities before the trial judge. [ 69 ] At the authorization stage, it was therefore premature for the judge to anticipate the University’s exception defence.

In Sobiga , Kasirer J.A. recalled that at this stage, it is not appropriate to determine the absolute value of a defence: [83] By considering grounds of defence at this early stage, the judge thus trenched on the work of the trial judge.

This Court has been clear in its direction to motion judges that the time to weigh such defences as against the allegations in the motion for authorization that are assumed to be true is, as a general rule, at trial. [...] [46] Reversal of the evidentiary burden [ 70 ] The judge also reversed the evidentiary burden by concluding that the tests established by the Supreme Court in CCH [47] to justify the right to fair dealing did not lend themselves to a collective analysis, or at least not in the case before him. [ 71 ] Copibec is right to argue that it did not have to demonstrate how the University’s fair dealing argument could be integrated into its own questions.

This position is supported by the comments of the Chief Justice in the Supreme Court decision CCH : [48] In order to show that a dealing was fair under s. 29 of the Copyright Act , a defendant must prove : (1) that the dealing was for the purpose of either research or private study and (2) that it was fair. [Emphasis mine] [ 72 ] This burden of proof assigned to the party invoking the right to fair dealing was reiterated by Abella J. in Alberta , which the Supreme Court rendered in 2012: [49] [12] [...] The onus is on the person invoking “fair dealing” to satisfy all aspects of the test.

To assist in determining whether the dealing is “fair”, this Court set out a number of fairness factors: the purpose, character, and amount of the dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work. [ 73 ] When the time comes, it will be up to the University and no one else to meet the double burden of demonstrating that its dealing with the works complies with its Policy and that its Regulation and management tools also comply with the statute and the criteria established in the case law, that is, that they are fair dealing with the works that were reproduced. [ 74 ] The judge therefore erred in evaluating the commonality of the questions in light of the fair dealing invoked by the University.

Once again, it is appropriate to refer to the teachings of the Supreme Court in Vivendi : In short, it can be concluded that the common questions do not have to lead to common answers. At the authorization stage, the approach taken to the commonality requirement in Quebec civil procedure is a flexible one. As a result, the criterion of art. 1003(

a) may be met even if the common questions raised by the class action require nuanced answers for the various members of the group . [50] [Emphasis mine] The triple presumption [ 75 ] I also find that at the authorization stage, the judge should have paid close attention to the presumptions of fact and law applicable to Copibec’s application. [ 76 ] First, the judge had to assume the application’s allegations were true. [51] In this case, and without wishing to limit the scope of the other allegations in Copibec’s pleading, this pleading nonetheless contained the following assertions: [ translation ] 3.

The class action the applicant wishes to bring is based on the fact that, since June 1, 2014, the respondent the UNIVERSITÉ LAVAL, through the actions of its staff members (including professors, adjunct professors, lecturers, clinical lecturers, speakers, interns, and administrative staff), its mandataries, and sub-contractors, has:

A) infringed the patrimonial rights of the class members, according to the Canadian Copyright Act , by reproducing and communicating by telecommunication, including providing its students and staff members, in paper or digital form, protected literary, dramatic, or artistic works without the authorization of the owners of patrimonial rights or any monetary consideration being paid to them.

B) according to the Copyright Act ,infringed the moral right to respect of the integrity of a work, causing prejudice to the class members who are authors by reproducing excerpts of works rather than the works in their entirety, without having obtained the permission of the authors of these works. [...] 17.

The respondent’s staff members, mandataries, and sub-contractors thus reproduce numerous copyrighted works or portions thereof in the respondent’s digital pedagogical environment or in paper or digital documents that they distribute, provide or communicate by telecommunication to their students or other University staff members. [...] 55. It has thus unilaterally decreed, without any legal basis, that the paper or digital reproduction of a [ translation ] “short excerpt” by its staff is a fair dealing within the meaning of the Copyright Act . [...] 60.

During the 2014 summer and fall semesters and the 2015 winter and summer semesters, the respondent’s staff, mandataries and sub- contractors continued to sell, distribute, provide, and communicate by telecommunication, for the purpose of teaching and research, collective works of texts and other reproductions of copyrighted works, as they used to do when they had a general licence from Copibec for this purpose, but now without authorization and without paying monetary compensation, except when limits established by the respondent in its Policy have been exceeded. 61.

According to the statements filed in 2013-2014 by the respondent’s staff, mandataries, and sub-contractors, which represent only a portion of the paper or digital reproductions made under the general licence then in effect, 11,217,839 pages from 7,113 Quebec and foreign works in Copibec’s repertoire were reproduced. These pages were reproduced for 893 classes and represented, on average, 339 pages per full-time student. In return, the respondent then paid the applicant the amount of $642,085, in accordance with the rate established in the general licence. [...] 69.

The actions of the respondent Université Laval’s staff, mandataries and sub-contractors do not in any way constitute actions that may be permissible for educational establishments under ss. 29.4 to 30 of the Copyright Act or under any other exception.

Section 29 of the Copyright Act includes a limited exception for “fair dealing” for the purpose of private study, research and education, which cannot be used institutionally and systematically to infringe the rights of authors, publishers, and other owners of copyright in protected works. [52] [ 77 ] These allegations, assumed to be true at the authorization stage, clearly show an infringement of the general rule under s. 27(1) of the C.A . [ 78 ] Furthermore, in any proceedings under the Copyright Act , there is a presumption that the work at issue is protected by copyright: Copyright Act R.S.C. 1985, c. C-42

Loi sur le droit d’auteur L.R.C. 1985, ch. C-42 Presumptions respecting copyright and ownership Présomption de propriété 34.1

(1) In any civil proceedings taken under this Act in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff to it, 34.1

(1) Dans toute procédure civile engagée en vertu de la présente loi où le défendeur conteste l’existence du droit d’auteur ou la qualité du demandeur : (

a) copyright shall be presumed, unless the contrary is proved, to subsist in the work, performer’s performance, sound recording or communication signal, as the case may be; and

a) l’œuvre, la prestation, l’enregistrement sonore ou le signal de communication, selon le cas, est, jusqu’à preuve contraire, présumé être protégé par le droit d’auteur;

b) the author, performer, maker or broadcaster, as the case may be, shall, unless the contrary is proved, be presumed to be the owner of the copyright.

b) l’auteur, l’artiste-interprète, le producteur ou le radiodiffuseur, selon le cas, est, jusqu’à preuve contraire, réputé être titulaire de ce droit d’auteur. [ 79 ] This Court expressly recognized this presumption in Bonnette : [ translation ] [27] It is therefore usually up to the party claiming copyright in a work to demonstrate that the work in question is original; however, the Copyright Act sets out presumptions regarding the existence of copyright in a work. The burden of proof is thereby reversed and rests on the shoulders of the defendant. According to s. 34.1(1)(

a) C.A. , in a proceeding for copyright infringement, the work at issue is presumed to be protected [...] . [53]

[ 80 ] The judge should therefore have considered this presumed protection and its effects should not have been annihilated at the authorization stage by a right argued by the University in its contestation. [ 81 ] Copibec could also raise the presumption of ownership of the work flowing from the printing of the author’s – or publisher’s, as the case may be – name on the work. [54] [ 82 ] Together, these presumptions provided sufficient proof for the proposed action to easily meet the [ translation ] “arguable case” threshold. [ 83 ] In response, the University stated that, in any event, an analysis of the questions submitted by Copibec would inevitably lead to multiple mini-trials, making the entire class action process a laborious exercise.

It added that proceeding this way would be in conflict with the proportionality rule. [ 84 ] I note that the judgment under appeal does not deny that the proposed class action raises sufficient arguments to establish a valid right of action, specifically, copyright infringement. The judge was of the opinion, however, that the class action would lead to a case- by-case analysis of fault and micro-management of the quantum for each class member. In my opinion, he is wrong. Here is why. [ 85 ] The modesty of each authors’ claim is on its own a valid reason to authorize the class action.

If each of the authors and other rights-holders were to go before the courts individually to seek the damages they claim from the University, there is no doubt that the latter would be dragged into multiple trials all with the same legal basis, which could lead to an application to consolidate all of the proceedings (art. 210 C.C.P .).

The class action project avoids this unwelcome complication. [ 86 ] Besides, the class action in this case aims to facilitate access to justice for the authors while conserving judicial resources and, if appropriate, to efficiently sanction actions that would otherwise remain sheltered from judicial intervention due to the modesty of the injury when assessed at an individual level. [55] In this sense, the class action contemplated by Copibec responds to these higher concerns. [ 87 ] Furthermore, the argument based on the individualized analysis of fault fails to take into account the significant management powers of trial judges.

Through a “judicial contract” the judge, in collaboration with counsel for the parties, may always come to an agreement on means to facilitate evidence and circumscribe its application to the members of the class or a particular sub-class. [ 88 ] Finally, although I consider this question premature, I disagree with the University’s assertion that the analysis of the fault alleged against it must necessarily be carried out on an individual level. [ 89 ] If I have understood the University’s position in first instance correctly, it intends to argue that its Policy respects the precepts of the statute and the case law with respect to fair dealing.

It also intends to show that its By-law provides for the implementation of means to deal with the works of others only for the purpose of teaching, learning, research or private study, and that its practices are fair. [ 90 ] First, as Copibec acknowledged during the appellate hearing, if the University demonstrates the validity of its Policy, the fairness of its By-law and the manner in which it is applied on a daily basis, the outcome of the class action will likely be predictable. [ 91 ] Viewed from this perspective, not only are the questions submitted common, but so are the answers because they will be enforceable against all the class members. [ 92 ] The University’s argument also ignores the case law, which has already identified the type of evidence it must present if it wishes to counter the allegation of copyright infringement successfully.

In CCH , the Chief Justice wrote: This raises a preliminary question : is it incumbent on the Law Society to adduce evidence that every patron uses the material provided for in a fair dealing manner or can the Law Society rely on its general practice to establish fair dealing? I conclude that the latter suffices.

Section 29 of the Copyright Act states that “[f]air dealing for the purpose of research or private study does not infringe copyright.” The language is general. “Dealing” connotes not individual acts, but a practice or system. This comports with the purpose of the fair dealing exception, which is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works. Persons or institutions relying on the s. 29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair.

They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair . [56] [Emphasis mine] [ 93 ] The Superior Court of Justice of Ontario reiterated the same teachings in these words: In my opinion, Thomson’s fair dealing , public policy, and implied consent defences can be established by general practice evidence and, therefore, questions about these defences have commonality. [57] [Emphasis mine] [ 94 ] I note in passing that the Ontario court had also concluded that the notion of fair dealing lends itself to collective analysis: [183] I conclude that within question 4, there are certifiable common issues as follows: Defences Did Thomson have the copyright owner’s implicit consent to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold itself out as the author or owner of court documents?

Does Thomson have a public policy defence to copyright infringement or to the violation of moral rights based on (

a) fair dealing, (

b) the

open court principle, (

c) freedom of expression, (

d) the necessity of using the idea of the court document as it is expressed, or (

e) a business or professional custom or public policy reason that would justify reproducing, publishing, telecommunicating to the public, selling, renting, translating, or holding itself out as the author or owner of court documents? [ 95 ] It appears from the above that evidence of the University’s general practices on fair dealing, without falling into anecdotal, exceptional or altogether marginal situations, would be enough to demonstrate its right to benefit from this exception.

It is for the trial judge to decide whether this evidence is sufficient. iii) Moral Rights [ 96 ] The appellant’s application was also dismissed on the grounds that the violation of the authors’ moral rights would require a subjective analysis, as would the main question of copyright infringement. [ 97 ] The courts have often had to consider moral damages and extrapatrimonial prejudice in the class action context.

Indeed, class actions have been authorized in cases of defamation, [58] infringement of the right to integrity and dignity, [59] discrimination, [60] trouble and inconvenience, [61] anxiety and anguish, [62] and even for moral suffering and loss of enjoyment. [63] [ 98 ] Scholarly commentary shares this generous approach: [ translation ] Moreover, while it enshrines a designated group’s right to act ... to seek individual remedies for its members, the concept of collective interest is foreign to the class action.

This notion, distinct from the general interest of all citizens, concerns the promotion and defence of the specific interests of a varied group such as consumers, workers, victims of racism or those with interests related to the defence of the environment, to cite only a few examples. [...] Subject to the inherent limits on the admissibility of public interest actions, representatives may raise any right that they might normally invoke in an individual action. [...] there is no reason to limit the scope of the collective action to represent only private interests. [64] [ 99 ] In sum, a class action is not, in principle, a bar to an extrapatrimonial claim. [ 100 ] Furthermore, the fact that I find that the main issue of alleged copyright infringement may be the subject of a class action is enough at the authorization stage to justify accepting the related issue of the violation of the authors’ moral rights.

It matters only that the main issue meets the legal criteria and the case law has emphasized that “the threshold requirement for common questions is low”. [ 101 ] Ultimately, it will be up to the trial judge to decide whether the proceeding as prepared by the appellant lends itself to a ruling on the other aspect of its action concerning the violation of class members’ moral rights. iv) The representatives’ interest [ 102 ] In Sibiga , this Court recalled that in class actions the issue of interest should be considered in context. [65] [ 103 ] In the case before us, I note that the Copyright Act provides for the possibility of concessions by an author respecting his or her copyright: Ownership of Copyright Possession du droit d’auteur 13

(1) Subject to this Act, the author of a work shall be the first owner of the copyright therein. 13

(1) Sous réserve des autres dispositions de la présente loi, l’auteur d’une œuvre est le premier titulaire du droit d’auteur sur cette œuvre. [...] […] Assignments and licences Cession et licences

(4) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium or sector of the market or other limitations relating to the scope of the assignment, and either for the whole term of the copyright or for any other part thereof, and may grant any interest in the right by licence, but no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by the owner’s duly authorized agent.

(4) Le titulaire du droit d’auteur sur une œuvre peut céder ce droit, en totalité ou en partie, d’une façon générale ou avec des restrictions relatives au territoire, au support matériel, au secteur du marché ou à la portée de la cession, pour la durée complète ou partielle de la protection; il peut également concéder, par une licence, un intérêt quelconque dans ce droit; mais la cession ou la concession n’est valable que si elle est rédigée par écrit et signée par le titulaire du droit qui en fait l’objet, ou par son agent dûment autorisé. [ 104 ] Also under this statute, Copibec, as a collective society, operates a licensing scheme, sets out classes of uses as well as the related royalties, terms and conditions (s. 2).

It must also see to the collection and distribution of royalties payable. In short, according to this description of its mandate, Copibec clearly has an interest in asserting the claims of the authors grouped under its common administration.

[ 105 ] Copibec also benefits from an enabling statute authorizing it to take legal action on behalf of these authors and assigns.

In this sense, the Copyright Act gives collective societies the power to collect the royalties due to authors ( s. 2 (b)). [ 106 ] In light of the above, even if Copibec did not personally hold any copyrights, there would be no doubt that it has sufficient interest to act on behalf of the class members for the purpose of asserting their patrimonial rights. [ 107 ] The following remarks by author Pierre-Claude Lafond regarding the former Code of Procedure are, in my opinion, still relevant: [ translation ] The Court of Appeal set the record straight with respect to the representativeness or the [ translation ] “typicality” of the representative’s claim, stating unequivocally that this American test, which was not accepted by the Quebec legislator, must not be used to assess the adequacy of representativeness.

The representativeness of the applicant’s claim is more properly considered by evaluating the common questions (art. 1003(

a) C.C.P .), and the Court must not re-assess this requirement when determining whether the representation is adequate. Each requirement for authorization under art. 1003 must be assessed independently of the others. This

interpretation frees the requirement in art. 1003(

d) from an irritant inherited from the restrictive

interpretation of the 1980s, making it easier to satisfy. [66] [ 108 ] Admittedly, Copibec extends the class to include authors other than those who gave it a mandate to represent them. At the authorization stage, however, there is nothing to distinguish the situations of these authors from those more closely related to Copibec.

In fact, according to the allegations in the application, these other authors are also victims of the same infringement. [ 109 ] Even if the connection between the proposed representatives and the class members who have not granted Copibec any mandate appears less concrete, it is nevertheless sufficient at the authorization stage. Once again, it is worth repeating that the trial judge may always redefine the class on the basis of the evidence he or she accepts. [ 110 ] The University argues, however, that statutory power cannot be extended to the question of moral rights.

In so doing, it repeated the argument of the judge, who concluded, on the basis s. 14.1(2) of the C.A. , that an author’s moral rights cannot be assigned. [ 111 ] At this point, it is important not to confuse the authors’ inability to assign their moral rights with their capacity to entrust a third party with obtaining, on their behalf, fair compensation for a violation of their moral rights.

Here, the appeal record does not show that the class members have assigned their moral rights or agreed that Copibec could keep the amounts related to the damage suffered due to the infringement of their moral rights. [ 112 ] In any event, the question appears moot when we consider that the impleaded parties, who are all authors and publishers who agreed to act as representatives, [67] allege to have themselves sustained a violation of their moral rights. [ 113 ] In these circumstances, it is not necessary to decide the University’s argument that the impleaded parties are not members of Copibec. [ 114 ] Indeed, the University errs in attempting to limit the status of the impleaded parties, especially the natural persons, to that of persons designated by Copibec.

There is nothing prohibiting these persons from acting not as designated members but personally.

It appears undisputable that if this last characterization were to prevail, the class and sub-classes proposed by Copibec would have representatives raising the same violation as that invoked for the class. [ 115 ] On this subject, I note that the Professors Ferland and Emery, in the third edition of their book, considered at the time that there could be only a single applicant in a class action. [68] This assertion was not repeated in their fourth edition. [69] [ 116 ] On this question, this Court has already allowed an appeal from a judgment that had refused to authorize a class action due to the designation of two rather than one member to represent the class: DESIGNATION OF TWO MEMBERS As regards question 1, I can see no merit in respondent's argument that the motion for authorization had to be dismissed because appellant had designated two, and not one, of its members as required under

Article 1048 C.C.P . It is true, of course, that

Article 1048 C.C.P . contemplates that a

Part III Corporation wishing to apply for representative status must designate one of its members who is a member of the group on behalf of which it intends to exercise a class section. But, in my view, that provision was not intended to exclude the possibility that more than one member would be designated. The provision simply requires that at least one of the members designated by the corporation be a member of the group for whom the action will be brought. In any event, I fail to see how the designation of two members, who have

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