Last week the CMEC, the Council of Ministers of
Education, Canada sought
leave to intervene in the Access Copyright v York U lawsuit. I have
obtained, from the Court itself, a copy of these materials, which are on the
CMEC is not seeking to get involved in the
discovery process but rather wishes to make oral and written submissions
following completion of the evidence and to have standing to seek leave to
appeal. CMEC wishes to address four main issues:
- The legal guidelines, justifications and international norms that
underlie the copying limits set out in the York Fair Dealing Guidelines;
- The interpretation of the word “education” in s. 29 of the Copyright
Act, and in particular, the meaning of fair dealing in the context
of a classroom with teachers and students;
- The interpretation of the SCC’s decision in CCH v. LSUC and Alberta
(Education) v. Access Copyright; and,
- The Copyright Board’s jurisdiction to set tariffs and the
compulsory or mandatory nature of these tariffs.
CMEC says that “It is not clear, based upon the
pleadings in this case, how and whether York University will address each of
this [sic] issues. It is crucial that this Court be able to fully explore each
of these issues in order to determine this case…”
CMEC states that its K-12 members are subject to an
interim tariff that is “similar” to the interim tariff pursuant to which York
is being sued and that its members are thus “currently in the same position as
the Defendant, York University”. This is presumably the interim tariff that the Board imposed on May 29, 2013.
There is no indication that CMEC sought judicial review from this decision. Nor
is there any indication that AC has sued any school board pursuant to the
that its guidelines are “virtually identical in
substance” to the York U guidelines. In
particular, CMEC seems to be concerned that any judicial interpretation of the
SCC’s K-12 decision, in which it was the Appellant, of the phrase “short
excerpt” may directly affect the use of copyright-protected works by students
and teachers in every K-12 school outside of Quebec.
CMEC appears to be
willing and even determined, along with York U, to put their guidelines on
trial. However, some will question whether this is either desirable or even
It may be recalled that over the last decade
the Supreme Court of Canada has handed down three landmark decisions on fair
dealing, including CMEC’s own case involving fair dealing in the classroom.
Those decisions (as well as in the other copyright cases that the Court has
decided) are highly favourable to CMEC and all educators and students in
Canada. The Court has articulated clear guidelines that give educators a strong
and unequivocal mandate to pursue their educational mission in accordance with
the law, and without the need to obtain the restrictive, expensive, and
intrusive licenses that AC seeks to impose on them. It is difficult to see what
additional clarification is needed, and why York U and CMEC would want to put
their own policies on trial, unless they have no choice.
As far as the interpretation of the word “education” is concerned, the word itself,
its usage in the act, and legislative history make if quite clear that the
meaning is very broad. As far as I know, AC has not disputed that teachers in
Canadian K-12 schools, colleges or universities are engaged in “education”.
Asking a court to confirm what is obvious may not only be unnecessary but
risky, unless this becomes absolutely inevitable.
The one issue that
arguably really does need to be tested in the appropriate way, in the
appropriate forum and sooner rather than later is that of AC’s “sword of
Damocles”, which is whether the Copyright Board has the jurisdiction to put in
place an effectively “mandatory” tariff – whether on an interim or final
basis. We cannot count on the York U litigation to resolve this issue. Indeed,
as I have pointed out before:
York appears to have effectively conceded that the
inevitable final tariff, when certified by the Copyright Board, will be “mandatory”.
Its main defence in this litigation seems focussed on the notion that the
tariff is merely “interim”. It does not confront the “elephant in the room”
question as to whether any final tariff for reproduction of literary works –
and a fortiori (even more so) an interim tariff – can be “mandatory” in the
“one copy of one work” sense espoused by AC and endorsed by the Copyright
CMEC makes a good
point in addressing this issue but is asking, as a potential intervener, to
make submissions only after the completion
of the evidentiary stage. Moreover, as things currently look, it seems that the York U litigation will
go on potentially for years with an agenda being largely controlled by Access
Copyright itself, as the plaintiff.
There are other and
better ways to determine the “mandatory tariff” issue, and to do so in the
short term. Ariel Katz suggested the best and most elegant possible
solution, which the Board rejected, even though AC itself had stated
that “Assuming the question is framed as Access Copyright
proposes, Access Copyright would not oppose a reference by the Board of such
question to the Court.” The differences in the wording being suggested by Prof.
Katz and AC were simply semantic and likely could have been easily reconciled. The result could have been a direct
reference from the Board to the Federal Court of Appeal. It might have been
quick, inexpensive, and conclusive. Nonetheless, there are still other ways to
resolve this issue sooner rather than later, if there is a will to do so.
I won’t comment on
the likelihood of CMEC’s success in being allowed to intervene in the York U
case, other than to say that, generally speaking, such an attempt is unusual at
this early stage, at the trial level, and in these circumstances. It will be
interesting to see how AC and York U react.
By the way, CMEC
will have an opportunity to address all of the issues with which it is
concerned in this potential AC v. York U intervention at the Copyright Board in
the hearing on AC’s proposed K-12 tariff, set to begin on
April 29, 2014.
CMEC’s Statement of Case is due to be filed on March 14, 2014 and it will
be posted on this blog as soon as I obtain a copy.