Access Copyright Responds To York Pleading: Why Concerned Canadian Educators Will Be Considering Their Options

Here is Access Copyright’s Reply and Defence to York’s Counterclaim.  All I will say at this point publicly, now that the pleadings are complete, is more or less what I said in a recent interview for the Law Times (September 23, 2013 – not available online).

• York apparently has no intention of attacking AC’s pleadings and has, instead, “pleaded over” to a number of issues that might have called for a motion to strike.
•  York is apparently going to allow this lawsuit to morph into a de facto infringement action, even though AC has no legal status to bring an infringement action.
• York appears to have effectively conceded that the inevitable final tariff, when certified by the Copyright Board, will be “mandatory”. Its main defence in this litigation seems focussed on the notion that the tariff is merely “interim”. It does not confront the “elephant in the room” question as to whether any final tariff for reproduction of literary works – and a fortiori (even more so) an interim tariff – can be “mandatory” in the “one copy of one work” sense espoused by AC and endorsed by the Copyright Board. 
• York appears to be willing to let its fair dealing guidelines, which are arguably irrelevant to the “mandatory” tariff issue, be put on trial. If this happens, there is a danger that AC will ask for “findings of fact” that could, as such, be bullet-proof on appeal. 
• York appears to be willing to engage in prolonged, extensive, and expensive discovery that could be disruptive to a large community at York. Among other consequences of this strategy, the York University Faculty Association has posted that “On June 28, 2013, all YUFA members received a memo entitled “Document Preservation Notice” from Harriet Lewis, University Counsel. YUFA believes that this memo fear mongers in its lack of contextualization. Further, in several respects the memo overreaches in what it requires or potentially requires of our members. In response the YUFA Executive unanimously passed a motion to file a policy grievance.”

This lawsuit may go on for years, not counting possible appeals. Even if York wins the battle on the relatively narrow point of an “interim” tariff not being mandatory, the Canadian educational community’s war will be lost if the Copyright Board imposes a final “mandatory” tariff to which there has been no effective opposition.  It should be recalled that  AUCC abruptly withdrew its objections and withdrew from that hearing in April of 2012, leaving its member universities unrepresented and after having spent about $1.7 million.

While some institutions may be willing to leave their fate in York’s hands and support York’s strategy, other Canadian educational institutions ranging from K-12 to elite research universities may be very concerned about the way this litigation is unfolding and how they could be adversely affected by its potentially negative outcome. They will also want to consider whether they wish to operate under a Sword of Damocles while York proceeds in the manner it has apparently chosen. Thus, they will be considering their options.

HPK