Last week the CMEC, the Council of Ministers of Education, Canada sought leave to intervene in the Access Copyright v York U lawsuit. I have obtained, from the Court itself, a copy of these materials, which are on the public record.
- The legal guidelines, justifications and international norms that underlie the copying limits set out in the York Fair Dealing Guidelines;
- The interpretation of the word “education” in s. 29 of the Copyright Act, and in particular, the meaning of fair dealing in the context of a classroom with teachers and students;
- The interpretation of the SCC’s decision in CCH v. LSUC and Alberta (Education) v. Access Copyright; and,
- The Copyright Board’s jurisdiction to set tariffs and the compulsory or mandatory nature of these tariffs.
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.