Federal Court of Appeal clarifies rules for granting intervener status in copyright case

Interveners are not given 'an open microphone' to discuss whatever may be on their mind: court

Federal Court of Appeal clarifies rules for granting intervener status in copyright case

The Federal Court of Appeal has dismissed Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic's motion to intervene in a copyright infringement dispute involving three streaming services.

The issue in Macciacchera (Smoothstreams.tv) v. Bell Media Inc., 2023 FCA 180 primarily revolved around the lawfulness of executing an ex parte Anton Piller order issued by the federal court. There was no challenge to the validity of the Anton Piller order itself.

The federal court ruled that the Anton Piller order had been lawfully executed against the appellants, which led to an appeal to the Federal Court of Appeal. The Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic sought to intervene in the appeal, citing its mandate "to advocate in the public interest on matters at the intersection of law and technology" and to "provide legal assistance to underrepresented organizations and individuals on law and technology issues."

The clinic provides expert testimony to parliamentary committees and participates in regulatory and quasi-judicial proceedings. It has been granted intervener status in numerous proceedings in the Federal Court of Appeal and other courts. The clinic stated that it has developed substantial expertise in applying the principles of quality to copyright actions.

The clinic argued that the outcome of this case could influence how federal courts handle future Anton Piller orders in copyright infringement cases. The clinic asserted that it is crucial to maintain consistency in these orders to strike a fair balance between the rights of the plaintiff and defendants.

If granted leave, the clinic intended to address several key issues:

  • Advocate for adopting a standard Anton Piller order model with explicit terms.
  • Promote the adoption of a roster of pre-approved independent supervising solicitors specializing in executing Anton Piller orders.
  • Suggest adopting a list of pre-approved solicitors available to defendants during the execution of Anton Piller orders.

The appellants consented to the clinic's intervention. At the same time, the respondents opposed it, arguing that the clinic's proposed intervention would not assist the court in deciding the appeal's issues and should be addressed elsewhere, such as bench and bar committees.

The Federal Court of Appeal considered the established test for intervention, which has three elements – the usefulness of the intervener's participation in the issues, the intervener's genuine interest in the issues raised by the appeal, and whether the intervention aligns with the interests of justice.

In its decision, the court acknowledged the clinic's expertise in copyright infringement matters. Still, it ultimately ruled that the clinic's proposed arguments did not align with the specific issues raised by the appellants in the appeal. The court clarified that interveners are not given "an open microphone" to discuss whatever may be on their mind about a given case. An outsider seeking admission to a proceeding as an intervener must take the issues identified by the parties as it finds them and cannot transform or add to them.

The court emphasized that the role of an intervener is not to introduce new issues but to provide different perspectives that will "assist the determination of a factual or legal issue related to the proceeding."

The appellant identified two issues in their appeal. The first was whether the federal court made an error in finding that the execution of the Anton Piller order was lawfully conducted. The second was whether the federal court committed an error in its costs award.

The court noted that since the validity of the Anton Piller order was not disputed in the appeal, the clinic's arguments regarding the form of the order were considered irrelevant. Moreover, what was at issue in the appeal were specific factual issues concerning how the order was executed.

The court pointed out that the appellants did not argue that the execution of the Anton Piller order was unlawful because one of the appellants could not retain counsel during the execution. Consequently, the clinic's arguments concerning the need for the federal court to adopt a list of pre-approved solicitors available to defendants during the execution of Anton Piller orders would have no bearing on the outcome of the appeal and would not assist the court.

Ultimately, the federal court dismissed clinic's motion to intervene in the copyright infringement appeal. Nonetheless, the court clarified that the issues identified by the clinic may still be important, but they were not suitable for resolution through an appeal of this particular case. The court said the problems cited by the clinic are more appropriately raised before bodies such as the Intellectual Property Bar Liaison committee of the Federal Court, the Intellectual Property Institute of Canada, or the legislative branch.

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