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43 canadianLawyErmag.com/inhousE august 2014 universities were free to use copyright-pro- tected material without payment. "When a user relies on fair dealing to ex- empt their copying, they still have to estab- lish that the use is fair," says Access Copy- right general counsel Erin Finlay. "It's our position that the type of systematic copying to the levels that universities copy — books, magazines, and journals — is simply not fair." In April 2013, Access Copyright sued York University, alleging York's fair-dealing guidelines "authorize and encourage copy- ing that is not supported by the law." yorK Lawsuit bEgins discoVEry Finlay says her organization and York are in the discovery phase of the proceeding, working toward a likely trial date some time in 2016. Howard Knopf at Moffat & Co., Macera & Jarzyna LLP says the proceeding will be unusually long. "Parties have asked for a 15- day trial. For a copyright case, it's kind of like the Hundred Years War." And as in any war, a few skirmishes have broken out. For instance, this past January, involved Canada's Copyright Act. That June, the federal government amended the act's "fair dealing" section to add "educa- tion" to the activities people could use copyright-protected works for without permission or payment. The second change came in July 2012. The Supreme Court of Canada decided in Alberta (Education) v. Canadian Copy- right Licensing Agency (Access Copyright) that teachers are allowed to use excerpts of copyright-protected material for education purposes without seeking permission from rights holders or paying them. After those changes — alongside four other copyright-related decisions from the Supreme Court that year — colleges and universities felt freer to use copyright- protected works without Access Copyright agreements. Many schools developed fair- dealing guidelines aligned with the act and the Supreme Court decision. But Access Copyright argued the court decision only applied to K-12 schools, not post-secondary institutions. It also insisted the amendments didn't mean colleges and I n d u s t r y S p o t l i g h t the Council of Ministers of Education, Can- ada Copyright Consortium fi led an applica- tion to intervene. The group argued that, as the voice of Canadian education ministers on copyright, it has an interest in how fair- dealings guidelines are interpreted, and so it should be involved. But Federal Court Judge Kevin Aalto denied CMEC's request, saying its participation would not "elucidate the is- sues for the court." In February, York fi led a motion to split the case into two phases. In the fi rst phase, the court would decide whether Access Copyright can assert a claim under its tar- iff for post-secondary institutions — a rate established under the Copyright Board of Canada that colleges and universities pay to compensate rights holders. In the sec- ond phase, the court would consider the al- leged unauthorized copying — but only if the court decides in the fi rst phase that the grounds are valid. copyright board tangLEd in tariffs The courtroom isn't the only copyright fi ght venue. The Copyright Board of Canada — Experience Counts. Referrals respected and appreciated. Employment and Labour Lawyers Shields O'Donnell MacKillop LLP 416.304.6400 65 Queen Street W, Suite 1800, Toronto, Ontario Canada M5H 2M5 Shields_IH_Apr_11.indd 1 3/1/11 10:04:56 AM

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