K-12 School Boards v Access Copyright & Vice Versa - October 10, 2023 Federal Court Summary Trial

In 2018, the Province of Alberta and dozens of K-12 school boards sued Access Copyright for a refund of $25 million they allegedly overpaid for Access Copyright licences for 2010, 2011 and 2012.

Access Copyright, on the other hand, has defended and  counterclaimed for a potentially much larger amount based upon subsequent Copyright Board tariffs.

Of course, as we all know, the Supreme Court of Canada ruled in 2021 that Access Copyright’s Copyright Board tariffs are not “mandatory”. See York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), <https://canlii.ca/t/jh8bc>

In a complex proceeding, namely Federal Court T-326-18, the parties have agreed that the main issues are as follows;

Issue #1: Have the Plaintiffs been licensees from 2013 onwards? (If so, the Plaintiffs shall pay the Access Copyright tariff in respect of the years in which they were licensees; if not, Issue #2 must be determined).

Issue #2: If not, are the Plaintiffs nevertheless liable in equity to pay Access Copyright? (If so, the Plaintiffs shall pay the Access Copyright tariff in respect of the years in which equity bound them; if not, Issue #3 must be determined).

Issue #3: If not, is Access Copyright entitled to retain the 2010-12 overpayment in any event? (If not, the Plaintiffs are entitled to a refund of overpaid royalties).

The case will be heard by way of “summary trial” on October 10, 2023 for seven days – which is interesting given the voluminous record and the lengthy proceedings to date. Those interested in observing can request to login virtually using this link:

https://www.fct-cf.gc.ca/en/court-files-and-decisions/hearing-lists

and doing a search for file # T-326-18. The request should be made soon.

There are some prominent counsel involved. This should be worth watching.

HPK