Friday, June 27, 2014

Update re Access Copyright, York University and Copyright Board

Here is an update on the Access Copyright litigation against York University and what's happening or not happening at the Copyright Board.

Here’s a letter dated May 13, 2014 filed by Access Copyright concerning the apparently very slow process to “bifurcate” certain issues.  As earlier predicted, it looks like this could indeed go on for a very long time.  Here’s the “docket”  for this case.

Also, the parties have now requested and been granted a trial date. The trial is set to begin on May 16, 2016 and is scheduled for 15 days, which is a rather long time for a copyright matter.

On a related front, there is no apparent indication of how the Copyright Board intends to proceed on the Post-Secondary tariff hearing, which is proceeding effectively by default.

Thus, it looks like there will be a long wait to an answer about whether there can be a “mandatory tariff”, whether “interim” or final, that could render a university liable for the entire cost of a tariff if the university is found to be responsible for a single infringing copy of a single work in Access Copyright’s repertoire. That cost could clearly be millions of dollars, in addition to whatever the university has already paid for various transactional and other licenses.

From what we have seen of the pleadings in the York University case, it is not even clear that this case will resolve the issue, except perhaps in respect of the “interim” tariff under which it is being sued. That could still leave the larger and long term issue of whether a “final” tariff can be mandatory up in the air. There will presumably eventually be a final tariff resulting from the default proceeding underway at the Copyright Board, unless the Board concludes that Access Copyright is not entitled to any tariff as sought.

There may be other ways of getting an earlier answer to questions about a “mandatory” tariff.  However, there is nothing on the record indicating that this is about to happen.

Finally, here’s a link to the recent debate between Roanie Levy, CEO of Access Copyright, and myself that took place at Brock University on May 29, 2014.


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