Wednesday, September 29, 2010

CMEC Supreme Court of Canada leave to appeal application

CMEC has now filed an application for leave to appeal to the Supreme Court of Canada, available here. It has rightly pointed out the inconsistency between the Federal Court of Appeal's approach in the "previews" case and this K-12 case.

The "previews" decision from the FCA came out shortly before the hearing by the FCA of the K-12 case. It focused on on the perspective of the user (i.e. consumer). The K-12 decision, however, focuses not the the user (i.e. student) but the teacher. As I have suggested several times, these two decisions would make a good pair for the SCC to deal with.

My client, CAUT, was an intervener in the FCA on the K-12 case and we urged the FCA to be consistent with the earlier "previews" decision. The resulting decision, with respect, was not.

Hopefully, the SCC will hear both cases and potentially render complementary judgments, as they sometimes do in these types of situations. There are appears to be a real need for guidance on the application of the CCH case, since certain collectives are strongly resisting its plain conclusions, as (with respect) did the Copyright Board in the K-12 decision.

CMEC makes a good point in its material. If there can be fair dealing in the profitable business of law, and the profitable business of iTunes type online music delivery, why is it ipso facto unfair for a teacher to provide copies, even of excerpts of textbooks, to students in the very non-commercial field of education?

No doubt, certain collectives and trade associations will press forward with their lobbying efforts to push back on CCH in the course of the C-32 debate.


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