I watched with great interest the two-day summary judgment hearing on January 17 and 18, 2024 in Province of Alberta et al v. Access Copyright. This particular proceeding has been going on for almost five years, and the overall confrontation between these parties for much longer. I would expect, with the inevitable appeals, that it could go on potentially for years to come. There is much that I could say about all this, but I won’t say it now.
I will,
however, say this. For the purpose of its so-called equitable claim in this
litigation, Access Copyright argued in court that the 2012 amendment to the Copyright
Act adding the word “education” to fair dealing was not significant – since
it wants to assert that the educators had no basis to rely on greater fair
dealing rights and somehow, via equity, should be forced to pay up for their allegedly
uncompensated use since then. As Access Copyright wrote in its memorandum for
the court, “In sum, as the Plaintiffs
themselves made clear, nothing within the Copyright Modernization Act
converted fair dealing into free dealing.”
e.g. “TORONTO [July 13,
2023] – Due to changes in fair dealing provisions in
the Copyright Act, since 2012, Canadian writers, visual artists,
and publishers - an indispensable part of Canada’s culture - have been deprived
of over $200 million in unpaid royalties under tariffs certified by the
Copyright Board of Canada”
Taking
contradictory positions in different forums at the same time is, at the very
least, unusual and potentially problematic. Go figure.
BTW, the
educators relied very heavily on the SODRAC and York decisions from the SCC,
wherein the submissions of Prof. Ariel Katz, Prof. David Lametti as he then was
in the SODRAC case, and myself were determinative.
HPK