Monday, December 20, 2010

Leave to Appeal Judgment to be Rendered in SOCAN iTunes "Previews" case

The SCC will announce this Thursday at 9:45 AM whether it will grant leave to appeal in the SOCAN "iTunes Previews" fair dealing case.

It would be very interesting and potentially very helpful for the Court to  hear both this case and the  CMEC K-12 fair dealing case. These two decisions from different panels of the Federal Court of Appeal and only a few weeks apart essentially contradict each other on the very important issue of whose "purpose" is crucial for a determination of whether or not there is fair dealing.

Both cases deal with very important fair dealing issues. It seems that lots of institutions and people don't "get" or can't agree on what CCH v. LSUC is all about - and this is an opportunity to provide necessary guidance.

As well, the FCA decision in the CMEC case, whether upheld or overturned,  (assuming leave is granted) will have a a profound effect on the pending mega-case involving Access Copyright's proposed 1300% increase and incursion into digital rights at the post-secondary level. The Board case will go on for years. 

If leave to appeal is denied in the CMEC K-12 case, the negative effect on post-secondary institutions will be immense in terms of cost and restrictions on access to copyrighted material. If leave to appeal is granted, it would seem sensible - and perhaps essential - for the Board to put the AC post-secondary file on hold with a "stay" until the SCC outcome is known. The evidence in the Board case would be developed very differently if the Supreme Court reverses the FCA. However, the Board would likely be very loath to grant such a stay. It would be an interesting exercise in judicial review to see if the Board could be forced to stay the case. Needless to say, somebody would have to ask both at the Board and, eventually, the FCA.

Moreover, the Federal Court of Appeal has become - with all respect - quite inconsistent and unpredictable on the "sempiternal" and inevitable question that arises in every case as to the appropriate "standard of review".  This is an issue that nobody wants to deal with - but must be dealt with because we now seem to know less rather than more about how the FCA will deal with cases from the Copyright Board. I'd be interested in hearing about experience on standard of review in judicial review from other Federal tribunals.

It's very important that these issues be clarified.

But as we all know, only about one in ten applications result in leave to appeal being granted.


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