For those following the proceedings in Province of Alberta et al v. Access Copyright, Federal Court T-326-18 (the K-12 proceeding), which I wrote about on October 5, 2023, here is what to expect following the conclusion of the opening statements and evidentiary phase of the summary trial motion. This is the Direction of the Federal Court from presiding Justice Aylen dated October 17, 2023:
October 17, 2023
BY EMAIL ONLY
Counsel for the Plaintiffs:
Wanda Noel email@example.com, firstname.lastname@example.org
Ariel Thomas email@example.com
J. Aidan O’Neill firstname.lastname@example.org
Alexandra Logvin email@example.com
Counsel for the Defendant:
Sarit Batner firstname.lastname@example.org
Barry B. Sookman email@example.com
Daniel G.C. Glover firstname.lastname@example.org
Laura E. MacDonald email@example.com
Allison Spiegel firstname.lastname@example.org
RE: THE PROVINCE OF ALBERTA ET AL v. THE CANADIAN COPYRIGHT
Court File No: T-326-18
This will confirm the Directions of the Court (Madam Justice Aylen) issued on October
“The following timetable shall apply to the closing arguments on the summary trial motion:
(a) Access Copyright shall serve and file their further written representations (which shall
not exceed 60 pages in length, without leave of the Court) by no later than November 10, 2023,
which shall replace their original written representations.
(b) The Plaintiffs shall serve and file their further responding written representations
(which shall not exceed 60 pages in length, without leave of the Court) by no later than
December 4, 2023, which shall replace their original written representations.
(c) Access Copyright shall serve and file any reply written representations by no later than
December 18, 2023.
(d) The oral closing arguments shall be held, in person, at the Federal Court in Toronto
on January 17 and 18, 2024 commencing at 9:30 am (Eastern).
(e) The parties shall ensure that their further representations address, among other things,
the following issues:
a. Who bears the burden of proof on each issue;
b. How the limitation period issue factors into each of the three issues put forward by the
parties, if at all;
c. Substantive submissions on the asserted limitation bar (including in relation to any
equitable relief), with reference to the relevant evidence (such as the presence or absence of
FTE forms, FTE reporting, invoicing, etc.);
d. Can someone “offer to pay” under the Copyright Act by way of their conduct?
e. Where the Court finds the terms of the licence that Access Copyright asserts that the
Plaintiffs offered to pay for;
f. The distinction between the tariff and a licence, if any;
g. What documents shed light on the parties’ understanding of the term of the licence
that Access Copyright asserts that the Plaintiffs offered to pay for (annual, 3 years, 6 years);
h. Did the Copyright Board amalgamate the two proposed tariffs or simply hear them
together? What impact, if any, does this have on the term of the licence?
i. How, if at all, the principles applicable to oral contracts come into play in establishing
the terms and conditions of the licence that Access Copyright asserts that the Plaintiffs offered
to pay for;
j. How does a continuation tariff impact the term of the asserted licence, if it all;
k. Is there an ability to terminate the licence that Access Copyright asserts that the
Plaintiffs offered to pay for and if so, on what basis and where does that ability come from?
l. Clear submissions as to the evidence relied upon and theory of liability for Access
Copyright’s assertion that the Plaintiffs offered to pay for a licence for each of 2016, 2017,
2018, 2019, 2020, 2021, 2022 and 2023;
m. Is Access Copyright asking the Court to find that the Plaintiffs have engaged in serial
infringement and if so, what evidence supports that assertion?
n. To grant the equitable remedies sought by Access Copyright, does the Court need to
make a finding of infringement?
o. What use can be made of the Copyright Board’s decision and the 2005-2006 volume
study on the issue of infringement;
p. Can the Court consider the agreement between the parties regarding the uses to be
made of the volume study? If so, is this proceeding off-side that agreement?
q. Can the Plaintiffs assert a lack of clean hands on the part of Access Copyright given
the state of the Plaintiffs’ pleadings?
r. Whether Access Copyright has standing to assert each form of equitable relief sought;
s. Whether equitable relief is available under the Copyright Act and if so, pursuant to
which provision(s) thereof;
t. The framing of issue 3 and whether a claim for equitable set-off can be made out if the
answer to issue 2 is “no”; and
u. The specific relief sought by each party in the form of a draft order.”