Wednesday, March 16, 2011

A Watched Pot Never Boils

Two important copyright events that one might have expected to have happened by now have still not happened.

The first is a ruling on CMEC's Leave to Appeal application from last summer's Federal Court of Appeal decision that held that the use of multiple copies  or anything prescribed by a teacher cannot be "fair".  As I've indicated, this is a very important case and makes the perfect counterpart to the SOCAN v Bell case involving 30 second iTunes  "previews", which the Supreme Court of Canada has already decided quite decisively to hear. Indeed, it has been tentatively scheduled for hearing  on December 6, 2011. The former is very restrictive of fair dealing in a way that will have enormous implications on the entire educational sector at a minimum. The latter is very permissive - and it arguably arises out of rather particular fact situation and rather unusual in that the Copyright Board made the initial ruling on its own, without being urged by any party.

Moreover, both of these cases would provide an opportunity to review - yet again but perhaps necessarily - the "sempiternal" issue of standard of review, which is becoming less rather than more clear as time goes by. (I should disclose my involvement as counsel for the Intervener CAUT in the appeal hearing).

Even Marion Hebb, a passionate spokesperson for writers, acknowledged in her testimony on Bill C-32 on March 10, 2011 that the Supreme Court would "probably" take this case. The transcript is not yet available but her remarks are available on the webcast just after the 11:47 mark. 

So, we watch with interest. Hopefully, both case will be heard.

The second is the long expected release of the Copyright Board's reasons for decision in the Access Copyright Interim Tariff decision, rendered without reasons on December 23, 2010 - almost three months ago.  Certain subsequent proceedings that might have affected the interim tariff at least at the margins have not even been ruled upon. In the meantime, the file is proceeding and interrogatories are being prepared - all without the benefit of the Board's reasoning.  So, once again, we stand and wait.


PS - the Board's decision was indeed posted a few minutes ago here....comments may follow.

1 comment:

  1. Very solid and well-reasoned decision