NEWSLETTER – March 2014

Heather Michelin, President
Allen Mendelsohn and Larry Markowitz, Editor(s)

President’s Message

Heather Michelin

Dear Honourable Judges and Colleagues,

Those of you who attended the Society’s Student Dinner in February were privy to a fantastic lecture delivered by our Director of Communications, Me Allen Mendelsohn. We were delighted to have a huge turnout, including a large number of law students, bar students and stagiaires, as we listened to an informative legal lecture infused with humour.

I am very pleased that Me Doug Mitchell will be addressing us on Wednesday, March 12, 2014 on the topic of “The New Code of Civil Procedure: Will this fix all our problems?”.  On February 20, 2014 the National Assembly passed Bill 28, An Act to establish the new Code of Civil Procedure, therefore this topic is very relevant and important. Me Mitchell, co-founder of Irving Mitchell Kalichman, is a well-known commercial litigation lawyer in Montreal and we look forward to an informative lecture.

An early registration discount will be available for those who register by March 7, 2014. We encourage you to register and pay online. You can also download the dinner invitation if you prefer to pay by cheque.

A sincere thank you to Me Mitchell’s firm, Irving Mitchell Kalichman, for their generous sponsorship of the upcoming dinner lecture.


Heather Michelin

Rhymin’ and Stealin’: Can Copyright and Creativity Co-exist on the Internet?

Larry Markowitz

In a dynamic and engaging presentation, the Society’s Director of Communications (and co-editor of this newsletter), Allen Mendelsohn, posed the following question: “Can Copyright and Creativity Co-exist on the Internet?”

Following an introduction by this author [Co-editor’s (Allen’s) note: This sentence should read: “Following a wonderful introduction that was both humorous and informative,  Society newsletter co-editor Larry Markowitz, taught us the new word “Twibel” (‘Twitter’ plus ‘Libel’ equals ‘Twibel’!) and commemorated the tenth anniversary of Facebook, which was founded on February 4, 2004, ten years to the day prior to that evening’s dinner], well-known Internet lawyer Allen Mendelsohn addressed the assembled crowd.

Me Mendelsohn kept the packed banquet hall enthralled with a wide-ranging discussion of popular topics ranging from rap music to Star Trek to Beethoven, and from Twitter to Bill C-11.  

The audience was composed of a large number of students (this being the Society’s Annual Student Dinner), several judges and many members of the legal and notarial communities, as well as Me Mendelsohn’s proud mother!

At the outset, our speaker grabbed the crowd’s attention by suggesting that he might be violating copyright – his own copyright! It seems he’d once covered some of the same content in an earlier speech to McGill law students …

Me Mendelsohn then expounded upon the copyright implications of rap artists sampling existing musical works, citing the Beastie Boys as accomplished practitioners of this art form. Indeed, those veteran rappers once recorded a song on the very topic of Me Mendelsohn’s presentation, aptly entitled “Rhymin’ and Stealin’”!

Not only have the Beastie Boys acknowledged the practice of sampling, but so has Canada’s ruling Conservative government – with its 2012 passage of Bill C-11, the Copyright Modernization Act. This Act contains new exceptions to copyright for “mash-ups”.    A mash-up is essentially a song created by blending two or more pre-recorded songs, usually by overlaying the vocal track of one song over the instrumental track of another. There are video mash-ups as well. To the extent that such works are “transformative” of original content, in the United States they may find protection from copyright claims under the “fair use” doctrine of American copyright law.

Bill C-11 provides for a so-called “YouTube exception” or mash-up exception.  The new song or video resulting from a mash-up will be protected from copyright claims, provided:

  • it is done for non-commercial purposes;
  • if possible, the source of the copyright material is mentioned;
  • the source material is not infringing any copyright; and
  • the “mash-up” does not have a substantially adverse effect on the market for the copyright protected material.

Basically, if the new work does not hurt existing revenues of the work that was sampled, it will be permitted.

The Copyright Modernization Act also expands the definition of “fair dealing” to include parody and satire. However, if the parody is exploited for commercial purposes, the owner of the original work may be entitled to apply for an injunction and to claim damages.

In contrast, US law does not automatically deny copyright protection to a mash-up that makes money for its “creator”. Profitability of the new work is but one of several factors for the Court to consider.

The fair use principle of American copyright law stems from a 1989 parody of the classic Roy Orbison song Oh Pretty Woman by the controversial rap group 2 Live Crew. Orbison’s music publisher sued 2 Live Crew on the basis that the fair use doctrine did not permit reuse of their copyrighted material for profit. However, the United States Supreme Court decided in 2 Live Crew’s favour, greatly expanding the doctrine of “fair use” and extending its protections to parodies created for profit, and effectively providing US Supreme Court confirmation of the old adage, “Good artists copy.  Great artists steal!”


Following Me Mendelsohn’s speech, the Lord Reading Law Society presented its annual Scholastic Achievement Prizes for the 2012-2013 academic year.  Indeed, almost from its establishment in 1948, the Society has awarded prizes for scholastic achievement by students in the faculties of Law at McGill University, Université de Montréal, and Université de Sherbrooke.  These prizes are:

  • McGill University:  a prize in the amount of $200.00 awarded annually to the student with the highest standing in First Year.  The winner was John Zelenbaba.
  • Université de Montréal: a prize in the amount of $200.00 awarded annually to the student with the highest standing in Constitutional Law I and II. The  winner was Camille Sylvestre.
  • Université de Sherbrooke: a prize in the amount of $200.00 is awarded annually to the student with the highest standing in the Legal English courses offered at the Faculty. The winner was Sarah de Villers.

The Society offers its sincere congratulations to all the winners.

Important Information from the Society Regarding Email

Allen Mendelsohn

As Communications Director for the Society, one of my responsibilities is managing our electronic mailing list. Email has become the principle mode of communication with our members and members of the legal community, and it is vitally important that we have the most up to date information. To that end, there are two messages I need to pass on.

First, we please ask you to always keep us informed if your email address changes during the year. This has become especially important given the recent changes in the Montreal law firm landscape. We only want to ensure that you receive our communications. Please email if your email address has recently changed.

Second, some of you may have heard about new legislation, Canada’s Anti-Spam Law (“CASL”). CASL comes into force July 1, 2014 and has implications for the Society. It requires that the Society have your “consent” to receive our emails. The Society is currenlty putting together a simple method to obtain your consent prior to July 1st. There is nothing for you to be concerned with now, but I wanted to introduce you to this topic, which I will be discussing in more detail in future newsletters.

If you have any questions about any communications matter, please email me at any time. Thank you.

Notice of the Nominating Meeting of the English-Speaking Section of the Bar of Montreal

Ian M. Solloway

A meeting of the English-Speaking Section of the Bar of Montreal shall be held in the Salon des avocats (Room 2.149) of the Montreal Courthouse, 10 St. Antoine Street East, Montreal, Quebec, on Tuesday March 11th, 2014 at 5:00 p.m. to discuss the traditional representation of English-Speaking councillors on the 2014-2015 Montreal Bar Council and to select one member to fill the position of Bâtonnier and three (3) members to fill the positions of Councillor, in preparation for the annual election and annual general meeting of the Bar of Montreal to be held on May 7th, 2014 at 5:30 p.m. in the Jules-Deschênes room (5.15) of the Montreal Courthouse.

Nomination papers may be obtained from the undersigned at 770 Sherbrooke Street West, Suite 1700, Montreal (Qc), H3A 1G1, tel. (514) 906-1701 ext. 251 and fax (514) 844-7290 and must be filed no later than April 1st, 2014 at 5:00 p.m. Each member is requested to forward to the undersigned $5.00 to defray the cost of the meeting, whether or not you are able to attend.

Please confirm your attendance no later than March 7th, 2014 at (514) 906-1701 ext. 251 or by e-mail to

English-Speaking Section
Bar of Montreal

News from the Mishpuchah


  • To Society Member Richard Yufe on the birth of his daughter Rachel


  • The Society wishes a speedy recovery to Board Member Donald Michelin