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Access Copyright v. York U

April 15, 2013

Recently, Access Copyright has filed a claim in the Federal Court against York University.  The claim alleges, in a nutshell, that York allowed unauthorized copies of Access works to be produced despite the fact that York has opted out of the license.  Much has already been written about the effect the Supreme Court’s Copyright Pentology and the expanded definition of Fair Dealing may have on this claim but there are a few other questions that I feel should be addressed both academically and by the courts?  Here they are,in no particular order.

The Effect of the Collective Copyright Sections of the Copyright Act and the jurisdiction of the Federal Court

Collective societies such as Access are given their authority by the Copyright Act.  Since they are creatures of statute, they are limited by that statute. In order to have the authority to do something, that authority must be granted by statute.  The issue with this action is that Access may not even have the ability to bring this action or alternatively, the Court may not have the authority to grant the relief they are seeking.  The second twist here is that the Federal Court itself is a creature of statute and like Access can only exercise the authority expressly granted to it by statute.  In order to even hear a case, the Court must be granted the authority by statute.

So the first question that I hope to answer in the coming weeks (ok I lied. There may be a particular order) is whether Access has pursued this claim through the proper channels and whether Access is entitled to the relief that it seeks.

How Will the Recent Developments in Fair Dealing Effect this Action

As infuriating as it is that Access brought this claim, there is a very obvious bright side: if it goes forward, we will get judicial commentary on the new fair dealing rules relatively quickly.    As the addition of education is new and untested, it will be interesting to see how the Courts will actually apply the new legislation.  Although the Supreme Court did weigh in during the summer, those cases were before the change to the legislation and were not in the post-secondary environment.  The specific facts at play here are sufficiently different that we cannot assume that the recent decisions will be followed exactly. 

Do Collectives Still Offer a Service that the Market Wants to Buy

Is this action actually about enforcing a tariff and representing the best interests of the creators that Access represents? Or is it really about something more?  Maybe what this really is is a last ditch attempt by Access to force an outdated business model on the market.  From a big picture standpoint, this action is really giving the academic and the legal community another opportunity to ask the question of whether collective societies have outlived their usefulness.  Whether stronger IP laws actually encourage innovation is the subject of much academic debate right now.  Maybe its time to ask the question of whether strong collectives are still good for innovation.

These are just a few of the questions that I hope to answer in the coming weeks.    

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