Tuesday, June 21, 2016

Access Copyright v. York U – The Final Trial Arguments Are Set to Unfold

The concluding arguments in the Access Copyright v. York University case at the trial level of the Federal Court of Canada will begin on Wednesday, June 22, 2016 in the East Court Room of the Supreme Court of Canada (“SCC”) building at 1:30 PM. One looks forward with great interest to see how the parties will address issues such as:

The Mandatory Tariff Issue

How will the parties deal with the fact that the Supreme Court of Canada (“SCC”) ruled on November 26, 2016 that “licences fixed by the Board do not have mandatory binding force over a user”?  In the current case involving York U, it wasn’t even a final tariff. It was only an interim tariff. I’ve written about this issue at length. This is no longer theoretical. The mandatory tariff issue has been dealt with by an explicit ruling from the Supreme Court of Canada, Here’s my most recent blog, which includes useful links to the decision itself, the dozen or so key paragraphs and the factum that Prof. Katz, Prof. Lametti (now David Lametti, M.P.) and I used to make the points that the Court embraced. If York successfully argues that Board tariffs are not mandatory in this instance, this may make the rest of this extremely long, complicated and expensive case effectively moot. That is because Access Copyright did not and cannot sue for copyright infringement. It is not a copyright owner or even an exclusive licensee. Even if were the latter, which it is not, it would need to join the actual copyright owners, which it did not. So, all eyes will be on the parties to see how they deal with this issue.

Fair Dealing in Canadian Universities

Since there has been enormous discovery work and expense devoted to putting York’s fair dealing policy on trial and most, if not all, of this presumably took place before the SCC’s ruling in CBC v. SODRAC, one expects that the parties and the Court will address it any event. In this regard, it will be interesting to see how the parties deal with the 2012 “education” amendment to the Copyright Act and two fair dealing decisions from the Supreme Court of Canada from 2012.  Furthermore, there have been two decisions from the Copyright Board since dealing extensively with the application of fair dealing in institutional settings involving Access Copyright.

The Context

This is an extremely important case. There have been about three weeks of evidence, including much expert evidence. No doubt, costs are already enormous for both sides. Given the recent rulings by the SCC on the mandatory tariff issue and by the SCC and the Copyright Board on fair dealing, Access Copyright would seem to be facing a major and existential challenge here. On the other hand, if York fails to succeed on the mandatory tariff issue, the consequences to the educational system could be profoundly negative.

If York succeeds on the mandatory tariff issue – and succeeds on the appeal that may follow – any ruling on York’s fair dealing policy may technically be obiter dicta but could still have interesting implications in all the circumstances.

Meanwhile, the Copyright Board is deliberating on AC’s Post-Secondary tariff. That hearing concluded in January of 2016, although the Board is still asking some interesting questions of AC, such as whether the Quebec COPIBEC regime should be relevant. This could, given recent practice at the Board - but hopefully won’t - drag on for another two years. Also, meanwhile, the Federal Court of Appeal has just heard a judicial review application on June 20, 2016 concerning the AC Provincial Government Tariff. That hearing also involved fair dealing issues and "substantial copying". Unlike, the typical two year delay in Copyright Board rulings, the Federal Court of Appeal normally renders its decisions in weeks or months – typically a few months at the most.

We live in interesting and interconnected times.


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