Tuesday, January 28, 2014

CMEC’S Leave to Intervene Application Material in AC v. York U Litigation

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 public record.

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 interim tariff. 

CMEC  states 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 necessary. 

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. 

As to whether it is necessary to put these issues on trial, I have previously questioned whether the AC v. York U litigation even needed to proceed at all and why steps have not been attempted to attack the pleadings. Such an attack, had it succeeded, might have saved a lot of time and money and avoided a lot of risk for educators and the public interest at large.

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 Board.
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. 


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