Friday, March 23, 2012

Further Setback for AUCC in Access Copyright Post-Secondary Copyright Board Case

AUCC has suffered another major setback in the Copyright Board case involving the proposed Access Copyright Post-Secondary Tariff.

The judicial review applications by AUCC regarding the Board’s order requiring  “opt out” institutions to answer interrogatories and the Board’s decision to refuse to require transactional licensing were very decisively dismissed by the Federal Court of Appeal on March 20, 2012 “from the Bench “,  with costs payable to Access Copyright.

I understand that the Court did not even call upon Access Copyright to respond to AUCC’s argument.  The Copyright Board intervened, and was also not called upon to respond.

The factums of the Parties and the intervener can be read here:


Here is the brief ruling of the Court. 


(Delivered from the Bench at Ottawa, Ontario, on March 20, 2012)


[1]               Before the Court are two applications for judicial review of interlocutory decisions of the Copyright Board rendered in connection with a proposed tariff entitled “Educational Institutions Tariff (2011-2013)”. The decisions under review are dated August 18, 2011 and September 23, 2011.
[2]               Despite the able submissions of counsel for the applicants, we have concluded that there are no special circumstances that would justify the intervention of the Court at this stage of the proceedings before the Copyright Board. This is manifestly a case where the Copyright Board should be permitted to complete its work before the Court is called upon to consider administrative law remedies.
[3]               For that reason, these applications for judicial review will be dismissed with costs payable to the respondent.

“K. Sharlow”


  1. This would suggest that the FCA is not going to get involved in this matter untilo there is a final decision of the Board

  2. Anon @ 12:29PM

    As I said on January 10, 2011 shortly after the interim tariff was imposed on December 23, 2010:

    "Successful judicial review could result in the Interim Tariff being set aside. It is clear from the material filed in opposition to the Interim Tariff by several participants that arguable grounds for judicial review could include:
    • Lack of jurisdiction;
    • Lack of evidence; and,
    • Procedural fairness."

    If judicial review been pursued vigorously at that stage, it might well have succeeded. It would have arguably been a much stronger case than the two applications that just got turned down.