Tuesday, February 14, 2017

Copibec v. Laval Class Action Can Proceed Says Quebec Court of Appeal

On November 17, 2014 I posted this:

Here is the first step in the Quebec copyright infringement class action by Copibec against the University of Laval. This is a request to the Quebec Superior Court to authorize Copibec to proceed by way of a class action. 
Two immediate differences leap out in comparison to the Access Copyright v. York U. litigation:
  1. There is no "interim tariff" in effect for Copibec. Access Copyright ("AC") is relying on the "interim tariff" from the Copyright Board, which AUCC and ACCC took no steps to have set aside when this might have been possible and perhaps quite feasible at the time back in January 2011.
  2. This is a proposed class action. The AC v York U litigation is not.
Here's an update. The Quebec Superior Court on February 26, 2016 refused to authorize the proposed class action. Copibec appealed and the Quebec Court of Appeal has just reversed - allowing the class action to proceed.

Here's the decision of the Quebec Court of Appeal dated February 8, 2017. I attach a Google translation for those who need it.

Here's a press release from Copibec.

It will be interesting to see whether Laval seeks leave to appeal this decision to the Supreme Court of Canada, and whether interveners come forward in support of such a leave application and/or later on, if any such leave application is successful.

I leave to others with more expertise than I have to comment on the class action aspects of this ruling, and particularly whether the result might have been different in a common law context.

At first glance, there would appear to be several interesting copyright questions that may arise, such as whether and how Copibec has standing to sue on a class basis for copyright infringement and particularly so re moral rights.


Here's a summary prepared by Alan Macek who provides invaluable update and tracking tools. See here.
The Quebec Court of Appeal granted the appeal (see 2016 QCCS 900) regarding Copibec's proposed class action again Laval regarding copyright infringement. Laval had not renewed the license agreement after the Copyright pentalogy and amendments to the Copyright Act in 2014. The Court considered the necessary level of commonality between the proposed class members to certify the class and found the trial court had put too high a burden on the plaintiff. The Court found that it will be up to the University to establish fair dealing and shouldn't detract from the commonalities. The Court also found that collective action appropriate in view of the small amount of each authors' claim and to facilitate access to justice and was also appropriate for moral rights claims. The Court concluded that Copibec was an appropriate representative plaintiff. (Summary based on a translation) (summary prepared by Alan Macek)

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