My ABC 2017 Presentation and Update on Access Copyright v. York University

On June 30, 2017, I presented a Copyright Law Update at Queen’s University to the wonderful ABC group, which consists mostly of copyright librarians and officers at the post-secondary level. There were also observers from important associations interested in Canadian post-secondary education. It was a good program and I was very pleased to be invited back. Naturally, I focused mainly on fair dealing and other copyright issues and events of interest to the educational community.

The Access Copyright v. York University case was of great interest to everyone. The Court had earlier tantalizingly indicated the decision would be released “Shortly after July 1 weekend”. However, we learned at the last minute that York University had asked for a delay. Here’s their letter in which York’s counsel actually asked to get the decision 48 hours before its public release. Frankly, I’ve never heard of such a request. Even Supreme Court of Canada “lockups”, which are extremely rare, give counsel at the most a one hour and fifteen minute “heads up” before decisions are released to the public at 9:45 AM and counsel cannot even communicate the contents to their client. In any event, this extraordinary request was denied but the Court did agree to delay the release until no earlier than July 7, 2017, when hopefully we all find out what the Court ruled in Phase I.

The timing here is very important to the public interest because, of course, the deadline for filing an objection to Access Copyright’s proposed tariff for 2018-2020 is July 19, 2017. Naturally, everyone wants to know what the Federal Court will have to say about whether York’s fair dealing guidelines are viable and whether York succeeds on its narrow argument that the “interim” tariff imposed at the end of 2010 is “mandatory”. For whatever reasons, York expressly told the Court that it was not necessary to rule on the whether a “final” tariff could be mandatory. I have written at length about this issue and how the Supreme Court of Canada has ruled that Copyright Board tariffs are not mandatory and the potential implications of this ruling for the York University case.

The Copyright Board has yet to rule on the seven-year-old application for a tariff for 2011 onward, and whatever happens in the York University case is likely to be appealed. So, the next hearing may be a long time getting underway. It makes little sense for it to proceed while the seven-year-old application from 2010 is still undecided and the Federal Court decision can be and likely will be appealed, whatever the outcome.

Whether in spite or because of this uncertainty, there was a lot of interest in the filing objections with the Copyright Board by July 19, 2017. One point that came up repeatedly is whether associations that have many members need to answer interrogatories on behalf each member. The answer is clearly that this is not necessarily necessary. If the association asks the Board to allow for a representative sample of members to file responses to interrogatories, such a request would likely be positively received. The Board even said so last time around – only this came too late. The request had not been made. Such requests are routine when radio or TV stations are involved, because there are hundreds of them and they obviously don’t all answer interrogatories. In any case, these points are touched on in my slides for the ABC event, which are available here and which provide some hopefully useful clickable links.

HPK