Online Book that gathers court materials as well as articles that are currently available for the ongoing 2010 Lawsuit Allegedly by Aga Khan:
Copyright Lawsuit 2010: Online Book of All available Materials
Cross examination Transcripts:
2010-08-09 CROSS-EXAMINATIONS for Summary Judgement Motions
News on cross-examinations:
Latest News Comments
Copyright Lawsuit: CROSS-EXAMINATIONS confirm that the case is not authentic - 2010-09-04
Heritage News has obtained the cross-examination transcripts, and they contain many revelations. First impression from Heritage News is that the three people who allegedly represent the Aga Khan in this case seem to confirm everything that the defendants have been saying! The defendant's position comes out even clearer and stronger! - But you be the judge once the transcripts are available.
Mr Gray's questions show his lack of knowledge of the Imamat, the Ismaili Faith and the Institutions. His questions instead, undermine the Imam!
Mr Sachedina's answers go against the main principle of Ismaili Faith and undermine the value of the Word of every hereditary Imam, a value which has been central to Ismaili Tariqah right from the beginning. Mr Sachedina's answers also confirm that all evidence in this case originates from him.
Mr Bhaloo has no input to give on the matters of importance in this case, and has appeared only at the request of Mr Sachedina. He refuses to answer simple questions and contradicts Mr. Sachedina.
Mr Tajdin's answers show that he has maintained a good relationship with Dr. Sachedina and Mr. Bhaloo, and that he has had many opportunites to approach the Imam, but that he has never crossed boundaries due to the code of conduct prescribed to Ismailis. He asks many of the same questions that the worldwide Jamat has about this Lawsuit, and pinpoints contradictions.
Mr Jiwa asks clear questions requiring precise answers that show the holes in the plaintiff's case as well as whether the witness is making up a story. Mr. Jiwa's answers show that he had nothing to do with the publication of thye Golden Edition KIZ and appears in this Lawsuit due to a confusion by Mr Sachedina between Mr Jiwa's private mailing list and Mr Tajdin's public website.
Both defendants reaffirmed under oath that they will stop all infringing activities if they have an authentic instruction from the Imam Himself to do so, no matter the legal recourses available to them.
Copyright Lawsuit: CROSS_EXAMINATIONS Table of Contents - 2010-09-04
Here is a detailed table of contents of the cross-examinations for the Motions for Summary Judgement in the Copyright Lawsuit allegedly filed by the Aga Khan. We tried to include everyone's burning questions.
Are Farmans to be followed?
Mr Sachedina says that Farmans that we hear in Didars are not actually Farmans and are not to be followed. He maintains throughout his testimony that only the written edited versions sent by ITREB are actually Farmans. Later, Mr Sachedina has to admit that Farmans come from the Noor, the Light of God. Mr Bhaloo says that Talikas containing blessings are not Farmans.
Are Ginans to be followed?
Mr. Sachedina maintains that Ginans are just devotional poetry and are not meant to be followed.
Are Previous Imams' Farmans to be Followed?
Mr Sachedina maintains that he does not follow Farmans of previous Imams.
Has an Official Farman Book Publication Been Approved?
LIF's announcement in January 16, 2010, informed the jamats as follows: <i>"The Jamat will be pleased to be informed that Mawlana Hazar Imam has already approved that the Jamati institutions should formally publish a volume containing the approved text of his farmans, including those made for the Golden Jubilee."</i>
Is this announcement accurate? Mr Sachedina cannot pinpoint whether or when the approval for this official Farman book was given, and does not indicate that any work is under way to produce an official Farman book.
Over 80% of ismailis have NO access to Farmans.
Mr Sachedina helps to establish that despite there being a few thousand Jamatkhanas, the circumstances of the worldwide ismaili Jamat are such that over 80% of ismailis do not have access to Jamatkhanas or to Farmans.
Does Imam Think in French and Speak in English?
Mr Sachedina admits twice to saying that the Imam thinks in French and speaks in English.
Health and Age of the Imam - Gray Keeps bringing this up.
Mr Gray tried to establish that the Imam is aging and in bad health. It was refuted by everyone.
Did Sachedina and Bhaloo discuss their Affidavits with the Imam?
Bhaloo and Sachedina did not discuss their Affidavits with the Imam.
Did the Imam ask Sachedina and Bhaloo to be His witnesses in this case?
Mr. Sachedina is the one who asked Mr Bhaloo to be a witness. No word on who decided that Mr Sachedina should be a witness.
Initiation of the Lawsuit
Sachedina says that only 2 people were involved in the issuing of the Statement Of Claim: Sachedina and Manji. Sachedina has a hard time pinpointing when the Imam gave the go-ahead to proceed with the Statement of Claim.
Whether Gray has spoken to the Imam
Gray tried to show that he has spoken to the Aga Khan by producing a group photograph including him and The Aga Khan Taken at the Aga Khan Museum Foundation Ceremony.
Are defendants insisting to meet the Imam?
Defendant Nagib Tajdin is often in close proximity but never addresses the Imam. The defendants are not insisting to meet the Imam, they are insisting on getting any authentic direct instruction from the Imam so that they know whether to continue or not.
Meeting the Imam: Defendant's Alternatives
Defendants present some alternatives that the Imam had to make them stop their activities without needing to meet them.
Meeting the Imam: Gray's Alternatives
Gray knows that the Lawsuit will end if the Imam says in person "Nagib Stop.", yet he tried many times to find alternatives to producing the Imam. None of his alternatives seem to show that he has access to the Imam.
Contradiction: April 2010 Announcement - No Consultation?
Brian Gray tries to establish with Nagib that the April Announcement was written in consultation with all the LIF. Sachedina later contradicts this point of view and establishes that in fact the draft of the second announcement was not circulated to anyone in the leadership before it was read out in Jamatkhanas as being from the LIF, Councils, ITREB etc on the same evening that it was written by a couple of persons including Sachedina.
Contradiction: Did Nagib Tajdin's letter really reach Aiglemont on Jan 20?
Sachedina, in his affidavit, says that Nagib's letter to the Imam Reached Aiglemont on January 20, 2010. Sachedina's email to Nagib on January 10 said that Aiglemont had no trace of Nagib's letter. Nagib produced a letter from the Kenya Council, as well as a confirmation from DHL that the letter actually reached Aiglemont on January 8th.
Contradiction: Drafting of the February 18th letter purportedly by the Imam
Mr Sachedina told Mr Jiwa that the Imam showed Mr Sachedina a draft of the second letter before signing it. Mr Sachedina told Mr. Tajdin that the Imam was away travelling when he drafted the second letter.
Did Sachedina convey to Imam that some of the points in the forged letter needed clarification?
Mr Sachedina did not convey to the Imam that Mr Tajdin had responded to the first letter with a request for clarifications.
Has Imam spoken to LIF, or is there a huge conspiracy against the defendants?
Gray tried to show that if the defendants are to be believed, then it would mean that there is a huge conspiracy of dozens of corrupt leaders, staff, and that this is unbelievable.
Sachedina's cross-examination showed that the misinformation can be pinpointed to very few individuals. Even the LIF Chairman, Lakhani, has not been contacted by the Imam about this issue, the LIF was briefed by Sachedina, and the announcements were written by only a couple of people, not by the whole ismaili leadership as they seem to imply or as Mr Gray seems to think by looking at his questions to Tajdin and Jiwa.
This confirms that all evidence in this case originates from Mr Sachedina.
Where the Farman Dissemination Policy of March 2010 Comes From
The Farman Dissemination Policy document of March 2010, submitted to court by the Plaintiff party, does not come from the Imam or from Aiglemont, it comes from Mohamed Manji.
Can anyone else sign for the Imam?
Mr. Sachedina dispels the rumours that someone else is allowed to sign for the Imam.
Can Imam's Farman supercede the Constitution?
This is a simple question, but Mr. Bhaloo, although he has been swearing to protect the constitution for decades, refused to answer the question on the grounds that he is not a constitutional expert.
Is there a breach of the Ismaili constitution?
Obviously, if there was a clear breach of the ismaili constitution, then this case would have been in the Arbitration board.
Discussions about the constitution have revolved around the specific clauses about Farmans that were included in previous constitutions but that have been removed from the newer constitution since 1986. Older constitutions distinguished between religious publications and Farmans. The clauses about Farmans were removed by the Imam, but the clauses about the other religious publications remained intact.
Sachedina maintains that the constitution has been breached and that in the case of Farmans, only the Imam can Publish or authorize publication, Not Itreb, not the Council. However, if the current constitution is to be relied on to prove the breach, then article 14.1c lets the Ismaili Council authorize publications (and this is how Mr Gray seems to understand it), and Article 8.4d gives the ITREB's the responsibility to publish. Neither article reserves the right for the Imam. This leaves us with Farmans to follow which say that Imam makes Farmans FOR Jamats.
Who Can Print Farmans
It is the Imam's prerogative to decide who can print Farmans, and it can be anyone.
How long did Defendants know about the Forgery before making it public?
It turns out that in order to protect the trust that Jamati institutions have with the Jamat, the defendants had not publicized their knowledge of forgery until after the Lawsuit was filed when they no longer had the choice.
What is Mr Sachedina's actual role at Aiglemont
Mr Sachedina's role a head of the department of jamati institutions is not a constitutional position, and the department of Jamati institutions cannot give new directions to institutions. Ismaili Institutions do not report to Mr. Sachedina. He coordinates their work, but ultimately, the institutions are answerable to the Imam.
What is the relationship between Defendants and Sachedina and Bhaloo?
Both Sachedina and Bhaloo agree that they are in good terms with the defendants. In the Case of Alnaz Jiwa, they don't recall ever interacting with him. In the case of Nagib Tajdin, they claim cordial, even warm relations with him, admit that he has never acted unrespectfully against either of them, and that his family was well-respected until the Announcements and the Lawsuit.
Why is Alnaz Jiwa included in the Lawsuit?
It turns out that Alnaz has no role in the publication and a minimal role in the distribution of the KIZ Farman book series. The reason he was included in the lawsuit seems to be due to a confusion on Mr Sachedina's part.
Are Farmans made Available to Non-Ismailis?
ITREB is manned 100% by ismailis who have taken the ismaili oath of office. The IIS is manned at all levels by many non-ismailis who are not bound by the constitution. Why then, are Farmans asked to be sent to IIS and not ITREB?
Contradiction: Did Sachedina give Nagib's address to Michelle Parkes?
Sachedina started saying that he had nothing to do with Miss Parkes' correspondance with Mr Tajdin. However, he was not able to stick to that story.
Contradiction: Imam's criticism of Leaders in London
Mr Sachedina maintains that the Imam's comment about Leaders in London during Golden Jubilee was incomplete. This statement is shown to be false.
Contradiction: Recall all books or just the Golden Edition?
Would the Imam ask Mr Tajdin to undertake an impossible task?
Contradiction: Who mentioned Nagib Tajdin's Name?
Sachedina's Affidavit says that the Imam mentioned Nagib Tajdin's activities to Sachedina. His earlier testimony says he knew nothing of Nagib's actions before he started working at Aiglemont. Now, Sachedina says that he is the one who mentioned Nagib's name to the Imam.
In 1998 Did sachedina and Bhaloo take the Farman Book Draft to the Imam?
The Draft that Nagib Gave for the Imam in 1998 is still in Bhaloo's house.
Is the Imam concerned about the website?
Mr Sachedina states that there is a general concern about the contents of ismaili websites, and a review is pending, however, Mr. Sachedina also says that Mr. Tajdin himself has been part of the solution.
Significance of Mehmani
A murid is quite entitled to speak to his Imam during Mehmani. Imam does listen, interact with and guide Murids during Mehmanis. Although reluctant, even Mr Bhaloo came around to this conclusion.
Significance of Talika
Talikas and Farmans are not regular speeches, they are treated with the greatest respect and special ceremonies as Divine words for the Ismaili community.
[/url]
Copyright Lawsuit Allegedly by Aga Khan - Latest News
Cross-Examination of Expert Ospreay
Cross-Examination of Expert Shows Main Weakness of Lawsuit Allegedly by Aga Khan - 2010-09-12
So far, the cross-examinations have shown that the whole case is orchestrated by a couple of people. The Plaintiff's case has not shown any access to, nor any evidence from the Imam. The Plaintiff party is therefore now trying to undermine the firm forgery evidence that the defendants have got.
If Mr Gray is to be believed on the authenticity of the January letter and the May Affirmation, then ismailis would also have to believe that the Aga Khan is aging and in bad health and can no longer do a signature that has remained consistent over many decades. We would also have to believe that Imam's signature changed for the January letter and for the May Affirmation, but not for the February letter [which we know is lifted from another document]. And many other completely unbelievable assumptions would have to be admitted by Ismailis if the Letters are believed to be true!
========
Short History of the Forgeries
Since the infamous phonecall by Mr Shafik Sachedina in January threatening to ruin Mr Nagib Tajdin's reputation, the Defendants have received 3 communications in 2010 that appeared to be signed by the Aga Khan:
[Letter from January 24 Purportedly by Aga Khan]
[Letter from February 18 Purportedly Signed by Aga Khan]
[Affirmation from May 12 Purportedly by Aga Khan]
A closer look at the above communications revealed large discrepancies in content, format and in signature compared to all known communications of the Aga Khan. When defendants asked questions, no direct contact was allowed with the Aga Khan, no Farman or relevant constitutional clause was shown, and no clarification was given to the defendants, which prompted the defendants to contact 3 different experts and to get 5 different expert reports all of which concurred that the Aga Khan did not sign these communications. None of the experts contacted by the defendants showed any doubt that these are forgeries.
[Quebec Expert report that signature on January letter is not of the Aga Khan]
[US Expert report that signature on January letter is not of the Aga Khan]
[ Ontario Expert Affidavit]
[Ontario Expert report on January letter]
[Ontario Expert report on February latter]
[Ontario Expert report on May Affirmation]
As the lawsuit advanced, it became obvious that the Plaintiff party has no access to the Imam, and is using their immense resources and influence to make many legal manoeuvres to avoid presenting any direct evidence from the Aga Khan. In fact, the forged letter was used as a tool to ruin the Defendants' reputation in public, but it was not put in court as evidence. The forged letter was actually first presented to the court by the defendants.
During the cross-examinations for summary Judgement, it became amply obvious, from Mr. Gray's Questions as well as from Mr Sachedina and Mr. Bhaloo's answers that they did not represent the Aga Khan, the beloved Imam of the Ismailis.
And therefore, in the absence of any genuine new instruction from the Imam, Defendants are bound by their allegiance to follow the Imam's Farmans, the Ismaili Constitution, as well as the Imam's direct instruction in Mehmani which are known to be authentically from the Imam and in no way support the Plaintiff Party's stance.
==========
Expert's Cross Examination
To counter the damage done to the Plaintiff's case by the above-mentioned cross-examinations, Mr Gray chose to examine, two weeks later, the Defendant's forensic expert Mr Ospreay. This examination clearly highlights that Mr Gray has no access to the Aga Khan, that Mr Gray shows very little respect towards the Aga Khan, and that Mr. Gray does not know the Aga Khan very well.
The Aga Khan is alive and well. Why waste time on a counter-expertise?
Mr Gray asked his own expert, not to show that the signatures are authentic, not to render any conclusion, but rather just to cast some doubt on the defendants' expertise. If Mr Gray had access to the Aga Khan, would he need to cast doubt on the expertise? He could instead destroy it by having the Aga Khan say in person that he signed the letters. And both defendants would immediately fold.
Mr Gray did not provide any authentic documents for his own expert to examine.
If Mr Gray actually represented the Aga Khan, he would have had access to many original signed documents from the Aga Khan. He could have gotten a real counter-expertise to actually conclude on the authenticity of the signatures. He could have had access to undisputed treaties signed by the Aga Khan in front of large audiences. Instead, he only got an expert to cast some doubt.
Defendants will not provide originals to Mr Gray
The Defendants refuse to give the originals of the forged letters to Mr Gray, as they cannot allow anyone to tamper with the original evidence of forgery. Forgery is a criminal offense in most of the countries. Why would the Plaintiff party ask for originals from the defendants, other than to get the forged documents out of the hands of the Defendants?
Similarities or Dissimilarities?
When a signature has remained consistent over many decades, it is very concerning when obvious dissimilarities are observed in a questioned signature. Obviously, fraud can only be discovered by analyzing dissimilarities, not similarities which are bound to happen since the forger is imitating the signature to the best of his ability. Furthermore, the dissimilarities in this case include a less fluid, more hesitant signature with the pen being lifted up many times, whereas the Aga Khan's known signatures are always fluid.
January and May signatures are similar
Mr Ospreay says that the dissimilarities found in the May signature are also present in the January signature. This leads Mr Gray to forward the conclusion that the same person probably wrote both signatures. The defendants agree, that it is highly possible that the same forger forged both signatures, they have never denied this.
Mr Gray admits 2 of the signatures are different from Aga Khan's Known Signatures
By asking a line of questions about why a signature could have changed, even Mr Gray admits that the signature on the January letter as well as on the May Affirmation are different from the Aga Khan's known signatures. Now, Mr Gray has to try to find an explanation for the differences in these signatures.
Mr Gray insists on Imam's Old Age and Bad health.
Mr Gray has been trying to advance the hypothesis that the Aga Khan's signature has changed because of old age and a 2-year old shoulder accident. But his own witness Mr Sachedina does not support Mr. Gray on this conclusion! Mr Gray has not shown any evidence that the Aga Khan is suffering from any ailment that prevents him from signing as usual, he is just making disrespectful assumptions that everyone denies!
In a short phone interview, one defendant said that he has had the opportunity to take close photos and videos of the Imam in 3 or 4 different countries after the shoulder injury happened and has seen that Imam is in perfect control of his hand and fingers.
Aga Khan has a consistent signature.
Mr Gray also tried to show that signatures naturally evolve and that the Aga Khan's signature could have evolved since the sample signatures were written. However, the expert Mr Ospreay pointed out in his affidavit that although it is normal for some people's signatures to vary, in the case of the Aga Khan, his signature has had very little variance over many decades.
Betrayed by the Second letter
The second forged letter, dated February, was shown to be a print on unusual paper and not an actual handwritten sample. Now, a quick comparison even by a layman of this second signature with the two others shows that this February signature is consistent with all the other known authentic signatures of the Aga Khan.
Now, even if one is to assume for a moment that the three letters are not forged, how is it then possible that the January and the May Signatures are affected by ailments and dissimilarities but the February signature is not affected by these?
Weakened Position
Heritage News therefore finds that the cross-examination of Mr Ospreay only shows more clearly that Mr Gray has no new credible evidence to present, and that he has no direct access to the Aga Khan to clear up the forgery issue. This gives more credibility to the Defendants' claim that the whole case is initiated by a usurper and not by the Aga Khan Himself.
==========
Online Book that gathers court materials as well as articles that are currently available for the ongoing 2010 Lawsuit:
Copyright Lawsuit 2010: Online Book of All available Materials
Cross examination Transcripts:
2010-08-09 CROSS-EXAMINATIONS for Summary Judgement Motions
All Comments
Attachment
2010-08-23-OSPREAY-CROSS .pdf 1.06 MB
So far, the cross-examinations have shown that the whole case is orchestrated by a couple of people. The Plaintiff's case has not shown any access to, nor any evidence from the Imam. The Plaintiff party is therefore now trying to undermine the firm forgery evidence that the defendants have got.
If Mr Gray is to be believed on the authenticity of the January letter and the May Affirmation, then ismailis would also have to believe that the Aga Khan is aging and in bad health and can no longer do a signature that has remained consistent over many decades. We would also have to believe that Imam's signature changed for the January letter and for the May Affirmation, but not for the February letter [which we know is lifted from another document]. And many other completely unbelievable assumptions would have to be admitted by Ismailis if the Letters are believed to be true!
========
Short History of the Forgeries
Since the infamous phonecall by Mr Shafik Sachedina in January threatening to ruin Mr Nagib Tajdin's reputation, the Defendants have received 3 communications in 2010 that appeared to be signed by the Aga Khan:
[Letter from January 24 Purportedly by Aga Khan]
[Letter from February 18 Purportedly Signed by Aga Khan]
[Affirmation from May 12 Purportedly by Aga Khan]
A closer look at the above communications revealed large discrepancies in content, format and in signature compared to all known communications of the Aga Khan. When defendants asked questions, no direct contact was allowed with the Aga Khan, no Farman or relevant constitutional clause was shown, and no clarification was given to the defendants, which prompted the defendants to contact 3 different experts and to get 5 different expert reports all of which concurred that the Aga Khan did not sign these communications. None of the experts contacted by the defendants showed any doubt that these are forgeries.
[Quebec Expert report that signature on January letter is not of the Aga Khan]
[US Expert report that signature on January letter is not of the Aga Khan]
[ Ontario Expert Affidavit]
[Ontario Expert report on January letter]
[Ontario Expert report on February latter]
[Ontario Expert report on May Affirmation]
As the lawsuit advanced, it became obvious that the Plaintiff party has no access to the Imam, and is using their immense resources and influence to make many legal manoeuvres to avoid presenting any direct evidence from the Aga Khan. In fact, the forged letter was used as a tool to ruin the Defendants' reputation in public, but it was not put in court as evidence. The forged letter was actually first presented to the court by the defendants.
During the cross-examinations for summary Judgement, it became amply obvious, from Mr. Gray's Questions as well as from Mr Sachedina and Mr. Bhaloo's answers that they did not represent the Aga Khan, the beloved Imam of the Ismailis.
And therefore, in the absence of any genuine new instruction from the Imam, Defendants are bound by their allegiance to follow the Imam's Farmans, the Ismaili Constitution, as well as the Imam's direct instruction in Mehmani which are known to be authentically from the Imam and in no way support the Plaintiff Party's stance.
==========
Expert's Cross Examination
To counter the damage done to the Plaintiff's case by the above-mentioned cross-examinations, Mr Gray chose to examine, two weeks later, the Defendant's forensic expert Mr Ospreay. This examination clearly highlights that Mr Gray has no access to the Aga Khan, that Mr Gray shows very little respect towards the Aga Khan, and that Mr. Gray does not know the Aga Khan very well.
The Aga Khan is alive and well. Why waste time on a counter-expertise?
Mr Gray asked his own expert, not to show that the signatures are authentic, not to render any conclusion, but rather just to cast some doubt on the defendants' expertise. If Mr Gray had access to the Aga Khan, would he need to cast doubt on the expertise? He could instead destroy it by having the Aga Khan say in person that he signed the letters. And both defendants would immediately fold.
Mr Gray did not provide any authentic documents for his own expert to examine.
If Mr Gray actually represented the Aga Khan, he would have had access to many original signed documents from the Aga Khan. He could have gotten a real counter-expertise to actually conclude on the authenticity of the signatures. He could have had access to undisputed treaties signed by the Aga Khan in front of large audiences. Instead, he only got an expert to cast some doubt.
Defendants will not provide originals to Mr Gray
The Defendants refuse to give the originals of the forged letters to Mr Gray, as they cannot allow anyone to tamper with the original evidence of forgery. Forgery is a criminal offense in most of the countries. Why would the Plaintiff party ask for originals from the defendants, other than to get the forged documents out of the hands of the Defendants?
Similarities or Dissimilarities?
When a signature has remained consistent over many decades, it is very concerning when obvious dissimilarities are observed in a questioned signature. Obviously, fraud can only be discovered by analyzing dissimilarities, not similarities which are bound to happen since the forger is imitating the signature to the best of his ability. Furthermore, the dissimilarities in this case include a less fluid, more hesitant signature with the pen being lifted up many times, whereas the Aga Khan's known signatures are always fluid.
January and May signatures are similar
Mr Ospreay says that the dissimilarities found in the May signature are also present in the January signature. This leads Mr Gray to forward the conclusion that the same person probably wrote both signatures. The defendants agree, that it is highly possible that the same forger forged both signatures, they have never denied this.
Mr Gray admits 2 of the signatures are different from Aga Khan's Known Signatures
By asking a line of questions about why a signature could have changed, even Mr Gray admits that the signature on the January letter as well as on the May Affirmation are different from the Aga Khan's known signatures. Now, Mr Gray has to try to find an explanation for the differences in these signatures.
Mr Gray insists on Imam's Old Age and Bad health.
Mr Gray has been trying to advance the hypothesis that the Aga Khan's signature has changed because of old age and a 2-year old shoulder accident. But his own witness Mr Sachedina does not support Mr. Gray on this conclusion! Mr Gray has not shown any evidence that the Aga Khan is suffering from any ailment that prevents him from signing as usual, he is just making disrespectful assumptions that everyone denies!
In a short phone interview, one defendant said that he has had the opportunity to take close photos and videos of the Imam in 3 or 4 different countries after the shoulder injury happened and has seen that Imam is in perfect control of his hand and fingers.
Aga Khan has a consistent signature.
Mr Gray also tried to show that signatures naturally evolve and that the Aga Khan's signature could have evolved since the sample signatures were written. However, the expert Mr Ospreay pointed out in his affidavit that although it is normal for some people's signatures to vary, in the case of the Aga Khan, his signature has had very little variance over many decades.
Betrayed by the Second letter
The second forged letter, dated February, was shown to be a print on unusual paper and not an actual handwritten sample. Now, a quick comparison even by a layman of this second signature with the two others shows that this February signature is consistent with all the other known authentic signatures of the Aga Khan.
Now, even if one is to assume for a moment that the three letters are not forged, how is it then possible that the January and the May Signatures are affected by ailments and dissimilarities but the February signature is not affected by these?
Weakened Position
Heritage News therefore finds that the cross-examination of Mr Ospreay only shows more clearly that Mr Gray has no new credible evidence to present, and that he has no direct access to the Aga Khan to clear up the forgery issue. This gives more credibility to the Defendants' claim that the whole case is initiated by a usurper and not by the Aga Khan Himself.
==========
Online Book that gathers court materials as well as articles that are currently available for the ongoing 2010 Lawsuit:
Copyright Lawsuit 2010: Online Book of All available Materials
Cross examination Transcripts:
2010-08-09 CROSS-EXAMINATIONS for Summary Judgement Motions
All Comments
Attachment
2010-08-23-OSPREAY-CROSS .pdf 1.06 MB
Extracts from Tajdin's Judgment motion:
Sachedina says under oath that Farmans http://www.ismaili.net/heritage/node/30 ... awsuit.pdf Statement of Claim Paragraph 23
Cross-Examination of Sachedina p.59:#253 http://www.ismaili.net/heritage/node/30367 p.59:#253, p.129 http://www.ismaili.net/heritage/node/30362 p.129: #544-#545, pp.147-150:#617 - #628
Affidavit of Nagib Tajdin sworn May http://ismaili.net/heritage/files/04-Af ... 202010.pdfMay 7, 2010, Moving Party’s Record, Tab 2, Paragraph 25-26
Affidavit http://ismaili.net/heritage/files/Affid ... 014.10.pdfAffidavit of Nagib Tajdin sworn July 14, Tajdin's Responding Record, Tab 6, Paragraph 27-29
Affidavit http://ismaili.net/heritage/files/Affid ... 202010.pdfAffidavit of Mohamed Tajdin sworn July 7, Responding record Tab 8, , Paragraph 17
Sachedina's Cross-examination p.74 http://www.ismaili.net/heritage/node/30381p.74: #306-#309
Statement' http://ismaili.net/heritage/files/Aga-Khan-lawsuit.pdf"Statement of Claim Paragraph 23
Statement' http://ismaili.net/heritage/files/Aga-Khan-lawsuit.pdf Statement of Claim, Paragraph 20 & 34 &35
Statement' http://ismaili.net/heritage/files/Tajdi ... 029.10.pdf Statement of Defence of Tajdin, Paragraph 23.
Affidavit' http://ismaili.net/heritage/files/Affid ... 014.10.pdf Affidavit of Nagib Tajdin sworn July 14, 2010, Tajdin's Responding Record, Tab 6, Paragraph 18-22, 83-85
Sachedina says under oath that Farmans http://www.ismaili.net/heritage/node/30 ... awsuit.pdf Statement of Claim Paragraph 23
Cross-Examination of Sachedina p.59:#253 http://www.ismaili.net/heritage/node/30367 p.59:#253, p.129 http://www.ismaili.net/heritage/node/30362 p.129: #544-#545, pp.147-150:#617 - #628
Affidavit of Nagib Tajdin sworn May http://ismaili.net/heritage/files/04-Af ... 202010.pdfMay 7, 2010, Moving Party’s Record, Tab 2, Paragraph 25-26
Affidavit http://ismaili.net/heritage/files/Affid ... 014.10.pdfAffidavit of Nagib Tajdin sworn July 14, Tajdin's Responding Record, Tab 6, Paragraph 27-29
Affidavit http://ismaili.net/heritage/files/Affid ... 202010.pdfAffidavit of Mohamed Tajdin sworn July 7, Responding record Tab 8, , Paragraph 17
Sachedina's Cross-examination p.74 http://www.ismaili.net/heritage/node/30381p.74: #306-#309
Statement' http://ismaili.net/heritage/files/Aga-Khan-lawsuit.pdf"Statement of Claim Paragraph 23
Statement' http://ismaili.net/heritage/files/Aga-Khan-lawsuit.pdf Statement of Claim, Paragraph 20 & 34 &35
Statement' http://ismaili.net/heritage/files/Tajdi ... 029.10.pdf Statement of Defence of Tajdin, Paragraph 23.
Affidavit' http://ismaili.net/heritage/files/Affid ... 014.10.pdf Affidavit of Nagib Tajdin sworn July 14, 2010, Tajdin's Responding Record, Tab 6, Paragraph 18-22, 83-85
http://www.iposgoode.ca/2011/01/who-mus ... ment-15991
Who Must Show Consent in an Intellectual Property Infringement Case?
January 31, 2011 by David Vaver
Professor David Vaver is a member of IP Osgoode, a Professor at Osgoode Hall Law School, an Emeritus Professor at the University of Oxford, an Emeritus Fellow of St. Peter’s College at Oxford and former Director of the Oxford Intellectual Property Research Centre.
The unauthorized publication by two of the Aga Khan’s followers of a compilation of his speeches got a fair amount of publicity last year and produced the first reported Canadian judgment on copyright of 2011, Aga Khan v. Tajdin, 2011 FC 14. The Federal Court granted the plaintiff summary judgment and the usual remedies for copyright infringement, finding the defendants lacked the consent they said the plaintiff gave them to publish. The court’s judgment is, however, marred by a (fortunately obiter) statement that it was not for a plaintiff in a copyright infringement suit to prove a lack of consent to the defendants’ publication. He need not “prove a negative, i.e. that he did not give consent,” said Harrington J. at para. [30] of the judgment: consent “is a matter of defence and so the burden must lie upon the defendants.”
This statement will be the subject of critical Note in the next issue of the Intellectual Property Journal. The criticism is briefly this: a plaintiff who wants to show infringement of any intellectual property right must say that (1) the defendant is doing something only I am entitled to do, and (2) I have not given him any consent to do that. The plaintiff cannot get away with just saying (1) the defendant is doing something only I am entitled to do, but (2) I am not telling him whether I gave him consent or not: he has to tell me whether I did or not. That is neither good sense nor good law. The Copyright Act does give a plaintiff the benefit of certain presumptions of authorship, copyright and title if the defendant puts those in issue (s. 34). Lack of consent is not among them.
Intellectual property statutes, including the Copyright Act, are drafted so that lack of consent is a constituent ingredient of infringement. Doing whatever an IP owner alone is authorized to do is not wrong: only doing so without his consent is. The statutes do not make consent an excuse or justification for, or exception from, infringement. It is therefore not a defence: Avel Pty Ltd. v Multicoin Amusements Pty Ltd. (1990), 171 C.L.R. 88. So too with criminal copyright infringement: an Ottawa copyshop that was charged with printing student course packs in violation of the Copyright Act was acquitted because, among other things, the Crown did not show that the copyright owners of the material in the course packs had not given the copyshop consent: R. v. Laurier Office Mart Inc. (1994), 58 C.P.R. (3d) 403, 414, aff’d (1995), 63 C.P.R. (3d) 229, 232 (Ont. G.D.). In patent law too, the plaintiff who does not prove that he has not consented to the defendant’s acts expressly or impliedly will lose his infringement case: Betts v. Willmott (1871), 6 Ch. App. 239; Pfizer Corp. v. Bristol Pharmaceutical Co. Ltd., [1967] R.P.C. 346. The argument that it is for defendants to prove they have the owner’s consent was specifically rejected in both those cases.
The defendants in the Aga Khan case were unrepresented and so could hardly have been expected to cite all the authorities that supported their position. They may have deserved to fail on the facts, but meanwhile their case should not be cited as a precedent for a reverse onus of proof of consent in copyright or any other IP infringement case.
Posted in Copyright, IP, Infringement, Infringement, Literary Works, Patents, Trademarks
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3 Responses to “Who Must Show Consent in an Intellectual Property Infringement Case?”
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1.
Tweets that mention IP Osgoode » Who Must Show Consent in an Intellectual Property Infringement Case? -- Topsy.com, on January 31, 2011 at 9:07 pm Said:
[...] This post was mentioned on Twitter by Clancco: Art and Law, Kate Sutherland. Kate Sutherland said: Who Must Show Consent in an Intellectual Property Infringement Case? – IP Osgoode http://ow.ly/3NJwR #copyright [...]
---------------------------------
2.
Alnaz Jiwa (Defendant), on February 1, 2011 at 11:33 am Said:
I did cite a Federal Court of Appeal case, Positive Attitude Safety System Inc. v. Albian Sands Energy Inc., 2005 CarswellNat 3575, 2005 FCA 332 at para. 39, which held:
“However, even if one assumes that the motion judge was right to consider the question, the difficulty is that copyright is defined in terms of the absence of the consent of the owner of the copyright. Consequently, proof of copyright infringement requires proof of lack of consent. It is therefore illogical to conclude that there has been infringement, subject to the effect of a purported license. It may be that a party has done something which, by the terms of the Copyright Act, R.S.C. 1985, c. C-42, only the owner of the copyright may do. But, before that conduct can be defined as infringement, the judge must find that the owner of the copyright did not consent to that conduct.”
The Motion’s judge failed to apply the case, which, it is respectfully submitted, was binding on him, and he did not even explain why it was not binding on him, or why he chose to ignore it.
I had argued it in my Memoramdum of Law, and also argued it in my submissions.
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3.
D Vaver, on February 1, 2011 at 12:07 pm Said:
Thank you for adding those points, Mr Jiwa. My apologies: the blog is much shorter than the Note that will be published in the IPJ. The Note does mention the Federal Court of Appeal decision in Positive Attitude to which you refer and which the judge decided not to follow, and the critique goes on to consider more fully why he should have followed it. I should also not have said that the defendants were “unrepresented”; rather, that they represented themselves, and that one of them, Mr Jiwa, was in fact a solicitor on the record.
Who Must Show Consent in an Intellectual Property Infringement Case?
January 31, 2011 by David Vaver
Professor David Vaver is a member of IP Osgoode, a Professor at Osgoode Hall Law School, an Emeritus Professor at the University of Oxford, an Emeritus Fellow of St. Peter’s College at Oxford and former Director of the Oxford Intellectual Property Research Centre.
The unauthorized publication by two of the Aga Khan’s followers of a compilation of his speeches got a fair amount of publicity last year and produced the first reported Canadian judgment on copyright of 2011, Aga Khan v. Tajdin, 2011 FC 14. The Federal Court granted the plaintiff summary judgment and the usual remedies for copyright infringement, finding the defendants lacked the consent they said the plaintiff gave them to publish. The court’s judgment is, however, marred by a (fortunately obiter) statement that it was not for a plaintiff in a copyright infringement suit to prove a lack of consent to the defendants’ publication. He need not “prove a negative, i.e. that he did not give consent,” said Harrington J. at para. [30] of the judgment: consent “is a matter of defence and so the burden must lie upon the defendants.”
This statement will be the subject of critical Note in the next issue of the Intellectual Property Journal. The criticism is briefly this: a plaintiff who wants to show infringement of any intellectual property right must say that (1) the defendant is doing something only I am entitled to do, and (2) I have not given him any consent to do that. The plaintiff cannot get away with just saying (1) the defendant is doing something only I am entitled to do, but (2) I am not telling him whether I gave him consent or not: he has to tell me whether I did or not. That is neither good sense nor good law. The Copyright Act does give a plaintiff the benefit of certain presumptions of authorship, copyright and title if the defendant puts those in issue (s. 34). Lack of consent is not among them.
Intellectual property statutes, including the Copyright Act, are drafted so that lack of consent is a constituent ingredient of infringement. Doing whatever an IP owner alone is authorized to do is not wrong: only doing so without his consent is. The statutes do not make consent an excuse or justification for, or exception from, infringement. It is therefore not a defence: Avel Pty Ltd. v Multicoin Amusements Pty Ltd. (1990), 171 C.L.R. 88. So too with criminal copyright infringement: an Ottawa copyshop that was charged with printing student course packs in violation of the Copyright Act was acquitted because, among other things, the Crown did not show that the copyright owners of the material in the course packs had not given the copyshop consent: R. v. Laurier Office Mart Inc. (1994), 58 C.P.R. (3d) 403, 414, aff’d (1995), 63 C.P.R. (3d) 229, 232 (Ont. G.D.). In patent law too, the plaintiff who does not prove that he has not consented to the defendant’s acts expressly or impliedly will lose his infringement case: Betts v. Willmott (1871), 6 Ch. App. 239; Pfizer Corp. v. Bristol Pharmaceutical Co. Ltd., [1967] R.P.C. 346. The argument that it is for defendants to prove they have the owner’s consent was specifically rejected in both those cases.
The defendants in the Aga Khan case were unrepresented and so could hardly have been expected to cite all the authorities that supported their position. They may have deserved to fail on the facts, but meanwhile their case should not be cited as a precedent for a reverse onus of proof of consent in copyright or any other IP infringement case.
Posted in Copyright, IP, Infringement, Infringement, Literary Works, Patents, Trademarks
ShareThis
3 Responses to “Who Must Show Consent in an Intellectual Property Infringement Case?”
---------------
1.
Tweets that mention IP Osgoode » Who Must Show Consent in an Intellectual Property Infringement Case? -- Topsy.com, on January 31, 2011 at 9:07 pm Said:
[...] This post was mentioned on Twitter by Clancco: Art and Law, Kate Sutherland. Kate Sutherland said: Who Must Show Consent in an Intellectual Property Infringement Case? – IP Osgoode http://ow.ly/3NJwR #copyright [...]
---------------------------------
2.
Alnaz Jiwa (Defendant), on February 1, 2011 at 11:33 am Said:
I did cite a Federal Court of Appeal case, Positive Attitude Safety System Inc. v. Albian Sands Energy Inc., 2005 CarswellNat 3575, 2005 FCA 332 at para. 39, which held:
“However, even if one assumes that the motion judge was right to consider the question, the difficulty is that copyright is defined in terms of the absence of the consent of the owner of the copyright. Consequently, proof of copyright infringement requires proof of lack of consent. It is therefore illogical to conclude that there has been infringement, subject to the effect of a purported license. It may be that a party has done something which, by the terms of the Copyright Act, R.S.C. 1985, c. C-42, only the owner of the copyright may do. But, before that conduct can be defined as infringement, the judge must find that the owner of the copyright did not consent to that conduct.”
The Motion’s judge failed to apply the case, which, it is respectfully submitted, was binding on him, and he did not even explain why it was not binding on him, or why he chose to ignore it.
I had argued it in my Memoramdum of Law, and also argued it in my submissions.
---------------------------
3.
D Vaver, on February 1, 2011 at 12:07 pm Said:
Thank you for adding those points, Mr Jiwa. My apologies: the blog is much shorter than the Note that will be published in the IPJ. The Note does mention the Federal Court of Appeal decision in Positive Attitude to which you refer and which the judge decided not to follow, and the critique goes on to consider more fully why he should have followed it. I should also not have said that the defendants were “unrepresented”; rather, that they represented themselves, and that one of them, Mr Jiwa, was in fact a solicitor on the record.
star_munir (Moved from another section)
Joined: 21 Apr 2003
Posts: 1441
PostPosted: 26 Jan 2012 03:39 pm
I would like to know whether Nagib and Jiwa were given opportunity to meet or talk with Hazir Imam? If yes, was every thing clarified and resolved after meeting? I am sorry if this is not appropriate place to post this question.
Admin
Joined: 06 Jan 2003
Posts: 1430
Post Posted: 26 Jan 2012 04:16 pm
That is the wrong place to ask but the reply is yes, they met the Imam for 30 minutes on 15 October 2010 in Toronto at 10:40am, The Imam explained to Sachedina, Mohamed Manji and Gray in the presence of Nagib and Alnaz that he remembered very well the Mehmani of 1992, that he needed competent people and therefore seeing the first Farman Book (red cover) he himself gave instructions to continue publishing.
The Imam also said he does not edit farmans, he annotates them, he said he would give them all of them to Nagib and Alnaz if they wish and they would work together, the Imam said several times that he would like to meet them again and he said he knew Alnaz was not involved at all in the publication of the book. The Imam said everyone can keep the farman Book and when Mohamed Manji told the Imam to order this web site ismaili.net closed, the Imam refused, saying there was no issue and on the contrary Mohamed Manji should work with Nagib and Alnaz.
The Imam asked them to put the matter of the Lawsuit to rest. But when the Imam was gone, these people continued their vendetta against Nagib and Alnaz, ignoring Imam's instructions to them. This is contempt of the Imamat.
The Imam was asked after that meeting around 11:07am by Alnaz if he would accept the mehmani (chocolate box) on behalf of all those who supported the book and their family and several time with a gesture towards the chocolate box, the Imam said "I accept".
There are thousands of postings on this matter on:
http://www.ismaili.net/heritage/node/29740
Joined: 21 Apr 2003
Posts: 1441
PostPosted: 26 Jan 2012 03:39 pm
I would like to know whether Nagib and Jiwa were given opportunity to meet or talk with Hazir Imam? If yes, was every thing clarified and resolved after meeting? I am sorry if this is not appropriate place to post this question.
Admin
Joined: 06 Jan 2003
Posts: 1430
Post Posted: 26 Jan 2012 04:16 pm
That is the wrong place to ask but the reply is yes, they met the Imam for 30 minutes on 15 October 2010 in Toronto at 10:40am, The Imam explained to Sachedina, Mohamed Manji and Gray in the presence of Nagib and Alnaz that he remembered very well the Mehmani of 1992, that he needed competent people and therefore seeing the first Farman Book (red cover) he himself gave instructions to continue publishing.
The Imam also said he does not edit farmans, he annotates them, he said he would give them all of them to Nagib and Alnaz if they wish and they would work together, the Imam said several times that he would like to meet them again and he said he knew Alnaz was not involved at all in the publication of the book. The Imam said everyone can keep the farman Book and when Mohamed Manji told the Imam to order this web site ismaili.net closed, the Imam refused, saying there was no issue and on the contrary Mohamed Manji should work with Nagib and Alnaz.
The Imam asked them to put the matter of the Lawsuit to rest. But when the Imam was gone, these people continued their vendetta against Nagib and Alnaz, ignoring Imam's instructions to them. This is contempt of the Imamat.
The Imam was asked after that meeting around 11:07am by Alnaz if he would accept the mehmani (chocolate box) on behalf of all those who supported the book and their family and several time with a gesture towards the chocolate box, the Imam said "I accept".
There are thousands of postings on this matter on:
http://www.ismaili.net/heritage/node/29740
Thanks for more detail about this case, now since this case has been closed but I want to know what happened after that!!and when Mohamed Manji told the Imam to order this web site ismaili.net closed, the Imam refused, saying there was no issue and on the contrary Mohamed Manji should work with Nagib and Alnaz.
1,Does Mohamed Manji worked with Nagib and Alnaz as per the instruction of Imam?
2,Why Mr. Manji wanted to closed this website?
3,Who own this website, Nagib or Jiwa?
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star_munir
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Jiwa has never been involved in the web site though the Statement of claim wrongly says Jiwa has been involved. This is of course a complete lie.agakhani wrote:Thanks for more detail about this case, now since this case has been closed but I want to know what happened after that!!and when Mohamed Manji told the Imam to order this web site ismaili.net closed, the Imam refused, saying there was no issue and on the contrary Mohamed Manji should work with Nagib and Alnaz.
1,Does Mohamed Manji worked with Nagib and Alnaz as per the instruction of Imam?
2,Why Mr. Manji wanted to closed this website?
3,Who own this website, Nagib or Jiwa?
Manji never called nor emailed nor tried to work with either of Nagib and Jiwa as per Imam's direct instructions to him, on the contrary, he has actively continued to harass them. even after the meeting
If I am not forgetting Mr. Manji is the president of National Council of Canada, if yes then I saw him during Golden jubilee Darabar in Toronto.he has actively continued to harass them. even after the meeting
Any way, as per the instruction received of Mowla bapa he should not treat Nagib and Jiwa badly and stop harassing them because leaders are roll
model to jamat.
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star_munir
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Its sad and strange about the way institutions and leaders are reacting. What is taking them so long in publishing Farmans is difficult to understand. Nagib and others involved in this case had to face lot of difficulties.
Its good that they got chance to have meeting with Hazir Imam. May Mowla always keep their imaan salamat and enable them to always abide by Farman.
Its good that they got chance to have meeting with Hazir Imam. May Mowla always keep their imaan salamat and enable them to always abide by Farman.
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shiraz.virani
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Lawyer loses appeal of copyright ruling involving Aga Khan
http://www.canadianlawyermag.com/legalf ... -Khan.html
http://www.canadianlawyermag.com/legalf ... -Khan.html
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star_munir
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The article is contradicting in some ways to what Admin had said. I hope Nagib and Alnaz will put the law suit matter to rest as per the instruction from Imam.
However, I am not understanding, Imam has clarified every thing than why problems came in terms of the judgment given by the court.
I also want to know, what Imam has told Alnaz and Nagib regarding publishing of golden jubilee farman.
Nagib has done valuable service in the past. This is certainly a test on him. I hope Nagib and Alnaz will not be frustrated and upset by the acts of institutes. I hope they will sincerely abide by the guidance by Hazir Imam.
However, I am not understanding, Imam has clarified every thing than why problems came in terms of the judgment given by the court.
I also want to know, what Imam has told Alnaz and Nagib regarding publishing of golden jubilee farman.
Nagib has done valuable service in the past. This is certainly a test on him. I hope Nagib and Alnaz will not be frustrated and upset by the acts of institutes. I hope they will sincerely abide by the guidance by Hazir Imam.
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star_munir
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Dear Admin,
I am waiting for your response. Besides that I would like to ask you some other questions. In one of the threads, you had mentioned about Farman of Imam Ali Shah. Were the Farmans of Imam Hassan Ali Shah and Imam Ali Shah published by some one during their times? If yes, then were they published in Gujarati or Khojki or some other language? Do we have records available ?Were they reprinted or republished during the times of Imam Sultan Mohamed Shah and Hazir Imam?
I am waiting for your response. Besides that I would like to ask you some other questions. In one of the threads, you had mentioned about Farman of Imam Ali Shah. Were the Farmans of Imam Hassan Ali Shah and Imam Ali Shah published by some one during their times? If yes, then were they published in Gujarati or Khojki or some other language? Do we have records available ?Were they reprinted or republished during the times of Imam Sultan Mohamed Shah and Hazir Imam?
To my knowledge there has not been any publication YET of the farmans of Aga Ali Shah and Aga Hassanali Shah.
There has been a mention in 1945 by the Imam of the importance of those Farmans and again in 1975 in world Ismailia Association conferences but still nobody did any publication. The Farmans of these two past Imams that I know are all in manuscripts, mostly Khojki.
But I can assure you that Hazar Imam is very well on top of this subject and may commission a compilation very soon.
There has been a mention in 1945 by the Imam of the importance of those Farmans and again in 1975 in world Ismailia Association conferences but still nobody did any publication. The Farmans of these two past Imams that I know are all in manuscripts, mostly Khojki.
But I can assure you that Hazar Imam is very well on top of this subject and may commission a compilation very soon.
Admin,To my knowledge there has not been any publication YET of the farmans of Aga Ali Shah and Aga Hassanali Shah.
That is not right, I have one farmans books of Aga Ali Shah and Aga Hassanli Shah in Gujarati, which has many farmans of these two Imams,
The titles of this book is
" Imam Hasan Ali Shah tatha Agashah Ali Shahna Mubarak Farmano"
'ઈમામ હસનઅલીશાહ તથા આગાશાહ અલીશાહના મુબારક ફરમાનો'
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star_munir
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http://www.iposgoode.ca/2012/02/aga-kha ... n-of-proof
Aga Khan Federal Court of Appeal Decision Fails to Address Burden of Proof
February 17, 2012 by Nora Sleeth (IPilogue Editor)
Last January, a Federal Court summary judgment held that the Aga Khan’s copyright in his literary works had been infringed by the publications of Nagib Tajdin and Alnaz Jiwa. The IPilogue drew attention to comments made in obiter stating that “it was not for a plaintiff in a copyright infringement suit to prove a lack of consent to the defendants’ publication.”
Professor David Vaver’s previous IPilogue post discussed the problematic nature of this statement. Essentially, this would place the burden of establishing consent on the defendants while, conversely, the Copyright Act does not give the plaintiff the benefit of this presumption. Thus, the reasoning in obiter would require a defendant to show that he had the plaintiff’s consent as opposed to requiring the plaintiff to prove that he did not give his consent. Previous cases have rejected such a reverse onus.
The Federal Court of Appeal recently dismissed Tajdin and Jiwa’s appeal. The judgment does little to address the contentious reverse onus issue despite the main issue on appeal being whether the Aga Khan gave his consent. Further, among other submissions, the appellants argued that the trial judge “erred in holding that the onus to prove consent was on Mr. Tajdin and Mr. Jiwa.” While the court examined the issue of consent, it did not correct the lower court’s interpretation and seemingly ignores the issue altogether.
The reverse onus in proving consent is problematic in that it forces the defendant to prove a fact that is chiefly belonging to the plaintiff. The plaintiff is the one who knows whether consent was given and it is therefore too onerous to shift the burden to a defendant who is not privy to the inner workings of the plaintiff’s mind. This is supported by the absence of a reverse onus provision in the Copyright Act and the court’s avoidance of this issue is dangerous as a precedent.
The Appeal judgment also contained the concerning statement that consent “can be either express or implied”. The notion of implied consent in copyright is problematic due to its subjectivity. For example, merely assuming consent because the copyright owner has not expressly protested can lead to infringement and subsequently require owners to police their own works.
It will be interesting to note how these issues are addressed through future court decisions.
Nora Sleeth is a JD candidate at Osgoode Hall Law School.
Aga Khan Federal Court of Appeal Decision Fails to Address Burden of Proof
February 17, 2012 by Nora Sleeth (IPilogue Editor)
Last January, a Federal Court summary judgment held that the Aga Khan’s copyright in his literary works had been infringed by the publications of Nagib Tajdin and Alnaz Jiwa. The IPilogue drew attention to comments made in obiter stating that “it was not for a plaintiff in a copyright infringement suit to prove a lack of consent to the defendants’ publication.”
Professor David Vaver’s previous IPilogue post discussed the problematic nature of this statement. Essentially, this would place the burden of establishing consent on the defendants while, conversely, the Copyright Act does not give the plaintiff the benefit of this presumption. Thus, the reasoning in obiter would require a defendant to show that he had the plaintiff’s consent as opposed to requiring the plaintiff to prove that he did not give his consent. Previous cases have rejected such a reverse onus.
The Federal Court of Appeal recently dismissed Tajdin and Jiwa’s appeal. The judgment does little to address the contentious reverse onus issue despite the main issue on appeal being whether the Aga Khan gave his consent. Further, among other submissions, the appellants argued that the trial judge “erred in holding that the onus to prove consent was on Mr. Tajdin and Mr. Jiwa.” While the court examined the issue of consent, it did not correct the lower court’s interpretation and seemingly ignores the issue altogether.
The reverse onus in proving consent is problematic in that it forces the defendant to prove a fact that is chiefly belonging to the plaintiff. The plaintiff is the one who knows whether consent was given and it is therefore too onerous to shift the burden to a defendant who is not privy to the inner workings of the plaintiff’s mind. This is supported by the absence of a reverse onus provision in the Copyright Act and the court’s avoidance of this issue is dangerous as a precedent.
The Appeal judgment also contained the concerning statement that consent “can be either express or implied”. The notion of implied consent in copyright is problematic due to its subjectivity. For example, merely assuming consent because the copyright owner has not expressly protested can lead to infringement and subsequently require owners to police their own works.
It will be interesting to note how these issues are addressed through future court decisions.
Nora Sleeth is a JD candidate at Osgoode Hall Law School.
Who Must Show Consent in an Intellectual Property Infringement Case?
http://www.iposgoode.ca/2011/01/who-mus ... ment-case/
January 31, 2011 by David Vaver
Professor David Vaver is a member of IP Osgoode, a Professor at Osgoode Hall Law School, an Emeritus Professor at the University of Oxford, an Emeritus Fellow of St. Peter’s College at Oxford and former Director of the Oxford Intellectual Property Research Centre.
The unauthorized publication by two of the Aga Khan’s followers of a compilation of his speeches got a fair amount of publicity last year and produced the first reported Canadian judgment on copyright of 2011, Aga Khan v. Tajdin, 2011 FC 14. The Federal Court granted the plaintiff summary judgment and the usual remedies for copyright infringement, finding the defendants lacked the consent they said the plaintiff gave them to publish. The court’s judgment is, however, marred by a (fortunately obiter) statement that it was not for a plaintiff in a copyright infringement suit to prove a lack of consent to the defendants’ publication. He need not “prove a negative, i.e. that he did not give consent,” said Harrington J. at para. [30] of the judgment: consent “is a matter of defence and so the burden must lie upon the defendants.”
This statement will be the subject of a critical Note in the next issue of the Intellectual Property Journal. The criticism is briefly this: a plaintiff who wants to show infringement of any intellectual property right must say that (1) the defendant is doing something only I am entitled to do, and (2) I have not given him any consent to do that. The plaintiff cannot get away with just saying (1) the defendant is doing something only I am entitled to do, but (2) I am not telling him whether I gave him consent or not: he has to tell me whether I did or not. That is neither good sense nor good law. The Copyright Act does give a plaintiff the benefit of certain presumptions of authorship, copyright and title if the defendant puts those in issue (s. 34). Lack of consent is not among them.
Intellectual property statutes, including the Copyright Act, are drafted so that lack of consent is a constituent ingredient of infringement. Doing whatever an IP owner alone is authorized to do is not wrong: only doing so without his consent is. The statutes do not make consent an excuse or justification for, or exception from, infringement. It is therefore not a defence: Avel Pty Ltd. v Multicoin Amusements Pty Ltd. (1990), 171 C.L.R. 88. So too with criminal copyright infringement: an Ottawa copyshop that was charged with printing student course packs in violation of the Copyright Act was acquitted because, among other things, the Crown did not show that the copyright owners of the material in the course packs had not given the copyshop consent: R. v. Laurier Office Mart Inc. (1994), 58 C.P.R. (3d) 403, 414, aff’d (1995), 63 C.P.R. (3d) 229, 232 (Ont. G.D.). In patent law too, the plaintiff who does not prove that he has not consented to the defendant’s acts expressly or impliedly will lose his infringement case: Betts v. Willmott (1871), 6 Ch. App. 239; Pfizer Corp. v. Bristol Pharmaceutical Co. Ltd., [1967] R.P.C. 346. The argument that it is for defendants to prove they have the owner’s consent was specifically rejected in both those cases.
The defendants in the Aga Khan case were unrepresented and so could hardly have been expected to cite all the authorities that supported their position. They may have deserved to fail on the facts, but meanwhile their case should not be cited as a precedent for a reverse onus of proof of consent in copyright or any other IP infringement case.
http://www.iposgoode.ca/2011/01/who-mus ... ment-case/
January 31, 2011 by David Vaver
Professor David Vaver is a member of IP Osgoode, a Professor at Osgoode Hall Law School, an Emeritus Professor at the University of Oxford, an Emeritus Fellow of St. Peter’s College at Oxford and former Director of the Oxford Intellectual Property Research Centre.
The unauthorized publication by two of the Aga Khan’s followers of a compilation of his speeches got a fair amount of publicity last year and produced the first reported Canadian judgment on copyright of 2011, Aga Khan v. Tajdin, 2011 FC 14. The Federal Court granted the plaintiff summary judgment and the usual remedies for copyright infringement, finding the defendants lacked the consent they said the plaintiff gave them to publish. The court’s judgment is, however, marred by a (fortunately obiter) statement that it was not for a plaintiff in a copyright infringement suit to prove a lack of consent to the defendants’ publication. He need not “prove a negative, i.e. that he did not give consent,” said Harrington J. at para. [30] of the judgment: consent “is a matter of defence and so the burden must lie upon the defendants.”
This statement will be the subject of a critical Note in the next issue of the Intellectual Property Journal. The criticism is briefly this: a plaintiff who wants to show infringement of any intellectual property right must say that (1) the defendant is doing something only I am entitled to do, and (2) I have not given him any consent to do that. The plaintiff cannot get away with just saying (1) the defendant is doing something only I am entitled to do, but (2) I am not telling him whether I gave him consent or not: he has to tell me whether I did or not. That is neither good sense nor good law. The Copyright Act does give a plaintiff the benefit of certain presumptions of authorship, copyright and title if the defendant puts those in issue (s. 34). Lack of consent is not among them.
Intellectual property statutes, including the Copyright Act, are drafted so that lack of consent is a constituent ingredient of infringement. Doing whatever an IP owner alone is authorized to do is not wrong: only doing so without his consent is. The statutes do not make consent an excuse or justification for, or exception from, infringement. It is therefore not a defence: Avel Pty Ltd. v Multicoin Amusements Pty Ltd. (1990), 171 C.L.R. 88. So too with criminal copyright infringement: an Ottawa copyshop that was charged with printing student course packs in violation of the Copyright Act was acquitted because, among other things, the Crown did not show that the copyright owners of the material in the course packs had not given the copyshop consent: R. v. Laurier Office Mart Inc. (1994), 58 C.P.R. (3d) 403, 414, aff’d (1995), 63 C.P.R. (3d) 229, 232 (Ont. G.D.). In patent law too, the plaintiff who does not prove that he has not consented to the defendant’s acts expressly or impliedly will lose his infringement case: Betts v. Willmott (1871), 6 Ch. App. 239; Pfizer Corp. v. Bristol Pharmaceutical Co. Ltd., [1967] R.P.C. 346. The argument that it is for defendants to prove they have the owner’s consent was specifically rejected in both those cases.
The defendants in the Aga Khan case were unrepresented and so could hardly have been expected to cite all the authorities that supported their position. They may have deserved to fail on the facts, but meanwhile their case should not be cited as a precedent for a reverse onus of proof of consent in copyright or any other IP infringement case.
Link to the Order of Prothonotary Tabib on 20 October 2014
This is the latest Order from the federal Court on the Lawsuit ordering the defendant to give the names of those Murids who bought the Golden Edition, their bank statements, to undergo more discoveries etc...
Order in English
http://www.ismaili.net/source/legal-doc ... nglish.pdf
Order in French
http://www.ismaili.net/source/legal-doc ... ancais.pdf
Now who after reading this will ever believe that the Imam is suing his 2 Murids for 4 1/2 years over some small amount of money for which his Murids are willing to give him whatever amount he would ask? Certainely no Ismaili would believe this is Imam's vendetta. However, those who know about the forensic experts that unveilled the forgeries made in this lawsuit know that the vendetta is not by the Imam but by Sachedina and co who have been exposed.
This is the latest Order from the federal Court on the Lawsuit ordering the defendant to give the names of those Murids who bought the Golden Edition, their bank statements, to undergo more discoveries etc...
Order in English
http://www.ismaili.net/source/legal-doc ... nglish.pdf
Order in French
http://www.ismaili.net/source/legal-doc ... ancais.pdf
Now who after reading this will ever believe that the Imam is suing his 2 Murids for 4 1/2 years over some small amount of money for which his Murids are willing to give him whatever amount he would ask? Certainely no Ismaili would believe this is Imam's vendetta. However, those who know about the forensic experts that unveilled the forgeries made in this lawsuit know that the vendetta is not by the Imam but by Sachedina and co who have been exposed.
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Lawyer loses appeal of copyright ruling involving Aga Khan
Written by Glenn Kauth
Monday, 30 January 2012
A Toronto lawyer has lost the latest round in his copyright dispute with the Aga Khan.
In a new ruling, the Federal Court of Appeal dismissed Alnaz Jiwa’s challenge of a Federal Court ruling that granted summary judgment in favour of the Aga Khan last year. Jiwa appealed the ruling along with Montreal businessman Nagib Tajdin.
The dispute centred on Jiwa and Tajdin’s reprintings of the Ismaili spiritual leader’s religious teachings (see “Lawyer sued by Aga Khan keeping the faith”). They claimed the Aga Khan consented to the publications during a ceremony in Montreal in 1992. The Aga Khan disagreed with that interpretation, and ultimately Federal Court Justice Sean Harrington declared that the pair had infringed the spiritual leader’s copyright and granted a permanent injunction precluding the publication of the book Farmans 1957-2009 as well as accompanying MP3 audio bookmarks.
The pair claimed Harrington made 19 errors by, among other things, failing to properly apply the test to determine whether there was a genuine issue for trial and proceeding as though he were the trial judge; relying on inadmissible hearsay evidence; drawing inferences without the necessary facts; and concluding that the Aga Khan never consented to the publication.
The consent issue boiled down largely to the events in 1992 at which a third person, Karim Alibhay, presented the book on a plate to the Aga Khan. Tajdin, according to the ruling, took that exchange as consent to the publication. But as Federal Court of Appeal Justice Johanne Gauthier noted in the latest ruling, the book presented to the Aga Khan didn’t indicate who had printed it. At the same time, there was no evidence that the spiritual leader knew Alibhay was acting on Jiwa and Tajdin’s behalf.
“There is no evidence that the Aga Khan knew or ought to have known that this book was not simply a compilation printed for the personal use of the Alibhay family, of which three members were presented to the Aga Khan,” Gauthier concluded.
In addition, Gauthier, writing on behalf of a unanimous court, rejected the appellants’ claims related to the defence of laches/detrimental reliance. As a result, the court dismissed the appeal with costs.
Written by Glenn Kauth
Monday, 30 January 2012
A Toronto lawyer has lost the latest round in his copyright dispute with the Aga Khan.
In a new ruling, the Federal Court of Appeal dismissed Alnaz Jiwa’s challenge of a Federal Court ruling that granted summary judgment in favour of the Aga Khan last year. Jiwa appealed the ruling along with Montreal businessman Nagib Tajdin.
The dispute centred on Jiwa and Tajdin’s reprintings of the Ismaili spiritual leader’s religious teachings (see “Lawyer sued by Aga Khan keeping the faith”). They claimed the Aga Khan consented to the publications during a ceremony in Montreal in 1992. The Aga Khan disagreed with that interpretation, and ultimately Federal Court Justice Sean Harrington declared that the pair had infringed the spiritual leader’s copyright and granted a permanent injunction precluding the publication of the book Farmans 1957-2009 as well as accompanying MP3 audio bookmarks.
The pair claimed Harrington made 19 errors by, among other things, failing to properly apply the test to determine whether there was a genuine issue for trial and proceeding as though he were the trial judge; relying on inadmissible hearsay evidence; drawing inferences without the necessary facts; and concluding that the Aga Khan never consented to the publication.
The consent issue boiled down largely to the events in 1992 at which a third person, Karim Alibhay, presented the book on a plate to the Aga Khan. Tajdin, according to the ruling, took that exchange as consent to the publication. But as Federal Court of Appeal Justice Johanne Gauthier noted in the latest ruling, the book presented to the Aga Khan didn’t indicate who had printed it. At the same time, there was no evidence that the spiritual leader knew Alibhay was acting on Jiwa and Tajdin’s behalf.
“There is no evidence that the Aga Khan knew or ought to have known that this book was not simply a compilation printed for the personal use of the Alibhay family, of which three members were presented to the Aga Khan,” Gauthier concluded.
In addition, Gauthier, writing on behalf of a unanimous court, rejected the appellants’ claims related to the defence of laches/detrimental reliance. As a result, the court dismissed the appeal with costs.
Order dated 14-DEC-2015 rendered by Mireille Tabib, Prothonotary Matter considered without personal appearance
The Court's decision is with regard to Letter from Plaintiff dated 01-DEC-2015 re: settlement of Reference
Result: granted
1. The Reference for damages ordered by Mr. Justice Harrington by the Judgment of March 4, 2011 is hereby terminated.
2. Within 2 weeks from the date of this Order, the Defendants shall pay the sum of $250,000 to the Aga Khan Foundation of Canada in full and final settlement of any amounts owing to the Plaintiff in respect of this action, in capital, interest and costs. Filed on 14-DEC-2015 certified copies sent to parties Transmittal Letters placed on file. entered in J. & O. Book, volume 1286 page(s) 261 - 262 Final Decision
The Court's decision is with regard to Letter from Plaintiff dated 01-DEC-2015 re: settlement of Reference
Result: granted
1. The Reference for damages ordered by Mr. Justice Harrington by the Judgment of March 4, 2011 is hereby terminated.
2. Within 2 weeks from the date of this Order, the Defendants shall pay the sum of $250,000 to the Aga Khan Foundation of Canada in full and final settlement of any amounts owing to the Plaintiff in respect of this action, in capital, interest and costs. Filed on 14-DEC-2015 certified copies sent to parties Transmittal Letters placed on file. entered in J. & O. Book, volume 1286 page(s) 261 - 262 Final Decision