- It arguably could and should be a crucial threshold and potentially determinative issue in the Access Copyright v. York U litigation, which is set to go to trial in the Federal Court on May 16, 2016 for three weeks. See more below
- Needless to say, it could affect many other tariffs, and particularly the pending Post-Secondary tariff proceeding and the recently announced K-12 tariff, where it was not put in issue but may become an issue as I have suggestedif the school boards decide not to pay what they may regard as a greatly excessive rate
(112) I conclude that the statutory licensing scheme does not contemplate that licences fixed by the Board pursuant to s. 70.2 should have a mandatory binding effect against users.
(113) I find that licences fixed by the Board do not have mandatory binding force over a user; the Board has the statutory authority to fix the terms of licences pursuant to s. 70.2, but a user retains the ability to decide whether to become a licensee and operate pursuant to that licence, or to decline.
- What impact will the “mandatory tariff” ruling of the SCC in CBC v. SODRAC have on this litigation? Will this be presented as a threshold and fundamental issue at the trial?
- Is it still necessary for the Court to consider the apparently vast amount of evidence, including expert evidence, gathered in this case, to rule on York’s fair dealing guidelines, and to treat this as, in effect, a huge infringement action? It may be noted that AC lacks the legal standing to sue for copyright infringement as such, unless it joins the actual copyright owners – something that could raise all kinds of potential legal and political concerns.
- What will happen if York loses on the “mandatory tariff” issue, or another key issue such as fair dealing? Will it then appeal, thereby allowing potential interveners the opportunity to become involved, if the Court so permits?
- Was there an earlier opportunity to get a ruling on whether the case could or should go forward, if the “interim tariff” is not “mandatory”? If so, why has York taken no steps to date for a summary disposition of this litigation based upon the proposition – now a ruling of the SCC - that Copyright Board tariffs, and a fortiori, interim Copyright Board tariffs, cannot be “mandatory”? While the SCC ruled on this issue on November 26, 2015, the issue has been known about and written about for many years and before this litigation was commenced on March 8, 2013?. Prof. Ariel Katz laid out the gist of the argument quite publicly back in 2012 and tried, without success, to get the Copyright Board to deal with it in the Post-Secondary hearing. I have been writing about this innumerable times beginning even in December 2010before the Board announced the interim tariff that is the basis of the current litigation and which AUCC did nothing to attempt to overturn on judicial review. I have long ago raised the question of whether it might have been possible to attack the pleadings at the outset on this issue.
- Could the York lawsuit have been entirely prevented if AUCC had sought timely judicial review back in January of 2011, as I explicitly suggested at the time, when such review would have been inexpensive and stood a good chance of success?
- While York has raised the issue of whether the “interim tariff” is mandatory, what is its position on a final certified tariff? The pleadings are silent on this point.
- Was it inevitable that York’s fair dealing guidelines go on trial? If so, will York be able to benefit from the Copyright Board’s extensive reasoning on fair dealing in the Provinces and K-12 decisions?
- Was it inevitable that experts, surveys, and other massive amounts of evidence be dealt with at the first phase of a bifurcated hearing if tariffs are not mandatory?
- Was it necessary for York to submit to such massive discovery, which has led to prolonged, extensive, and expensive proceedings that has threatened to be disruptive to a large community at York and even led to a policy grievance by the faculty association arising from a “Document Preservation Notice” sent by York’s former General Counsel to YUFA members