Monday, November 19, 2007

Access Copyright's Latest Test Case

I’ve read the Statement of Claim in Access Copyright (The Canadian Copyright Licensing Agency) v. Business Depot.

First, full disclosure. I’ve represented Business Deport in its capacity as a member of a coalition at the Copyright Board, the Federal Court of Appeal and the Supreme Court of Canada in matters relating to the private copying levy. But I’m not involved in this particular litigation.

Second, I’ve infiltrated Access Copyright as an author/member mole. I can’t wait to see my first big cheque and the resulting agony of deciding which charity may richly benefit. However, so far, in almost a year, my few communications from Access have given me no inside information on its workings. Even though it is one of the more transparent of Canadian collectives, that’s not saying much.

Tempted as I may be, I won’t comment on it specifically. Michael Geist has made a good start. I will also say generally, though, that, in a matter such as this, there are often issues of a procedural and substantive nature - sometimes very fundamental - that need to be dealt with, sooner or later. The statement of defence has not yet been filed. There are experienced counsel in place on both sides, so presumably everything will be dealt with thoroughly.

However, a little bit of general comment is in order because Access Copyright has itself thrown down the gauntlet and thrust its latest test case into the public realm with an aggressive press release.

Therefore, readers should know a little history about Access Copyright’s previous test cases.

In 1994 - 1995, Can’tCopy - oops, CanCopy - the then name of Excess - oops, Access Copyright, collaborated with the RCMP in the mercifully unsuccessful criminal persecution, oops, prosecution, of a small immigrant family owned copy shop named Laurier Office Mart here in Ottawa. In fairness to CanCopy, it seemed that it was the RCMP that initiated this hapless prosecution, but CanCopy became quite involved. I was not counsel for the excellent defence of Laurier, but I was proud to represent it at the hearings on Bill C-32. Laurier appeared at the Committee because it did not want other honest businesses to have to go through what it did. Unfortunately, the Committee proceeded to ignore Laurier’s submissions and CanCopy had its way with Parliament, as Bill C-32 as enacted attests. However, I am pleased to say that Laurier Office Mart is still thriving in the same location and providing valuable service to the University of Ottawa and is an exemplar of this country’s small business community.

Not content with this failed foray against a small, legitimate family business, CanCopy became deeply involved in an attack against the Great Library of the Law Society of Upper Canada, though the visible plaintiffs were the major law publishers. The result was not only a monumental loss for the publishers but a great victory on fair dealing and other fronts for copyright users - though sadly some of them such as CMEC still can’t or won’t recognize this, even in its flagship publication Copyright Matters! This was the landmark 2004 SCC decision in CCH v LSUC. That decision has some obvious road blocks and some less obvious land mines that Access will have to deal with now, if it can.

So, in its important test cases, Access Copyright has fundamentally failed against a small, honest family business, and the historic Great Library of the Law Society of Upper Canada. With these two strikes against it, Access is nothing if not audacious for now taking on one of the worlds biggest, most sophisticated and prestigious retail corporations. You can follow this case at the Federal Court website, here.


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