The prayer for relief of York’s counterclaim seeks a declaration that “any reproductions made that fall within the guidelines set out in York’s “Fair Dealing Guidelines for York Faculty and Staff (11/13/12)” … constitute fair dealing pursuant to sections 29, 29.1, or 29.2 of the Copyright Act”. It is apparent from this that the Guidelines are the heart of York’s position in this litigation.
- It would seem very likely that AC will seek leave to appeal on the mandatory tariff ruling. It is an existential threat to what remains of its long obsolete and unwelcome business model. After all the presumably millions it has spent to date on this litigation and at the Copyright Board, the relatively small cost of a SCC proceeding and the hope, however faint and remote, of a successful “Hail Mary Pass” would suggest that such an attempt to get leave to appeal will almost certainly be made. How York will respond and whether leave will even be granted remain to be seen.
- How York deals with the ruling on its fair dealing guidelines is a much more complex question both substantively and procedurally that many well-paid minds are presumably now addressing.
- Only actual parties can seek leave to appeal. Theoretically, others can seek leave to intervene in the leave to appeal process – but this is extremely unusual and very rarely successful.
- If this case gets to the SCC, there are likely going to be a lot of potential interveners lined up. The recent practice of the Supreme Court, unlike the Federal Court of Appeal, is to be very liberal in allowing leave to intervene but very restrictive in permitting time for oral argument – i.e. only five minutes per intervention.
- come up with tariffs that offer sufficient value and convenience to Canadian users
- do so in a way that doesn’t cost creators and objectors millions of dollars
- do so in a way that doesn’t take 7 to 9 years or so.