Access Copyright v. York University - Some Important Comments and Questions from Prof. Ariel Katz

Prof. Ariel Katz's brilliant research and analysis enabled me on behalf of him and then Prof. David Lametti's (now MP and Parliamentary Secretary to Minister of ISED) McGill institute to persuade the Supreme Court of Canada, per Rothstein, J., in CBC v. SODRAC in 2015 that Copyright Board tariffs are not "mandatory". Prof Katz has just posted a very important blog following the Access Copyright v. York University decision from the Federal Court two weeks ago, in which the judgment of the Supreme Court of Canada was not followed.

His blog is entitled "Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss" and begins thus:

Two weeks ago, Justice Phelan of the Federal Court handed Access Copyright a huge victory in its lawsuit against York University.^[1] I have followed the case closely and read the parties’ submissions and I have been constantly concerned that York risked snatching defeat from the jaws of victory. Unfortunately, this is what happened. The good news is that many of the Court’s fundamental findings rest on very loose foundations, that I am confident that York’s loss is only temporary, and that if York appeals the decision and handles the appeal appropriately, most, if not all, of the Court’s major findings will be reversed. One way or another, and possibly with interveners assisting the court, one hopes that all essential arguments will be made on appeal. Therefore, this post provides an anatomy of York’s predictable yet totally avoidable loss.

In a nutshell, York has chosen to ignore the most important question in this case, namely whether tariffs approved by the Copyright Board become mandatory on users. The answer to this question carries long-term strategic implications for Access Copyright and for all educational institutions in Canada. Access Copyright understood the importance of this question and argued its case accordingly. York, on the other hand, has chosen to limit its submissions to the narrow question of whether an interim tariff could be mandatory, and refrained from addressing the general question of whether approved tariffs (i.e., final tariffs) were mandatory on users. York has also been eager, it seems, to turn this case into a case about fair dealing, which need not have happened.

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Anyone interested in Canadian education  and/or copyright law will want to read this blog through and thoroughly to the end.

HPK