Maybe the Canadian Copyright Bar and the Copyright Board Should Try Some PMNOC Remedies Instead of Rearranging the Deck Chairs?

(deck chairs you know where awaiting rearrangement...)

On November 3, 2017, I spoke at the University of Toronto Sixth Annual Patent Law Conference, on the “promise” issue and its treatment in parallel proceedings with very interesting timelines by a NAFTA ISDS tribunal and Supreme Court of Canada. I shall have a lot more to say about that later in a separate posting.

The conference opened with the panel discussion chaired by Chief Justice Crampton of the Federal Court about how the Court would deal with the new regime that will eliminate the troubled two track PMNOC applications and litigation proceedings regime that has existed for many years in the federal court. Even under the old system, the Court was required by law to deal with the “NOC Applications” (where in rem validity and infringement were not determined) within 24 months from start to finish including the judgment. Under the new system, as required by CETA, the proceedings will be in the form of an action with discoveries and live witnesses (in contrast to an application in which there was no oral evidence) and will also deal with in rem validity and infringement determinations. All of this must be dealt with within 24 months from beginning to end, which will include a hearing of normally two weeks maximum to take place at least three months before the end of the two-year period so as to allow the judge time to write a judgment. Here is how the Court has spelled out how this will be done. Based on the Court’s admirably transparent and useful statistics for the last several years, it is safe to assume that there will be dozens of such proceedings per year for the foreseeable future. There are about 40 active judges on the Federal Court. However, many are “supernumerary” which means that they usually carry about half of a normal case load – which can still be considerable. They each have only one clerk. There is no in-house research facility. The vast case load of the Federal Court ranges from admiralty to extradition to land claims to environmental issues and much more in terms of jurisdiction, including countless immigration files which are obviously extremely important to the individuals involved. Many cases are immensely complex both legally and factually and can involve enormous amounts of money and huge public policy issues. Most Federal Court judges manage to issue an important judgment every month and judgments are expected normally within six months after a hearing, which normally takes place within one to two years at most after the proceeding is commenced. Many proceedings are very competently and often aggressively “managed” (i.e. moved along) by Case Management judges (who are sometimes Prothonotaries with more limited powers than Judges). 

This should serve as a much-needed reality check on what is happening, or more accurately not happening, at the Copyright Board. The Copyright Board rarely holds more than two or three contested hearings a year and rarely issues more than five actual “tariffs” per year. Very few of the matters coming before the Copyright Board are ever nearly as complex factually or legally as these pharmaceutical patent cases, which also usually involve very large amounts of money.

And yet, everyone knows that for contested matters the Board typically takes more than four years even to get to a hearing and more than three years thereafter to render a decision that is almost invariably and often successfully challenged in the Federal Court of Appeal and, six times in the last five years or so, taken to the Supreme Court of Canada. These decisions are invariably retroactive for several years causing great doubt and uncertainty for all concerned, and often unexpected windfalls or liabilities as the case may be. Even the uncontested matters move at barely more than a glacial pace.

If the Federal Court, which has a very broad mandate and enormous caseload based on a vast range of subject matter, can deal with dozens of pharmaceutical patent cases each year and dispose of actions including discoveries and two-week trials from beginning to end including judgment in 24 months or less, surely it is not too much to expect similar performance results from the supposedly expert and specialized Copyright Board with its tiny fraction of the Federal Court’s caseload. However, it is clear that the only way that this will happen is with specifically mandated legally imposed deadlines as we are now seeing in the Federal Court and have seen elsewhere. All the talk about increased resources for the Copyright Board, which is not only unnecessary but potentially even very counterproductive, and the rearranging of specifics, such as they are, of the procedural steps in the Board’s Model Directive on Procedure, and other suggested tinkering, will be of no effect in the absence of legislation and/or regulations that set forth the basic procedural steps and deadlines for meeting them. Many of the submissions in the recent consultation effort involving suggestions for fixing the Copyright appear to be pulling their punches, or not even punching at all or in the right direction.

The Federal Court, the PMNOC bar and ISED are to be congratulated for dealing decisively with a very urgent, vast and complex situation that is, by any measure, much more difficult than that facing the Copyright Board.  The Copyright bar and the Copyright Board have much to learn from this example and, if they ignore it or fail to learn from it, may do so at their considerable peril. The Minister of ISED may wish to consider a process to encourage - and if necessary require - such learning and instruction.

Note that the Board has recently issued an astonishing number of notices directed toward holding hearings involving countless parties and consolidating several proposed tariffs no later than May and June of 2018 in an apparent effort to accelerate the imperceptibly glacial pace of its previous proceeding. This is notwithstanding the onslaught of judicial review resulting from the Board’s extremely belated and very likely incorrect ruling on the so-called “making available” right and the tariff itself more than 39 months after the retirement of Chairman William Vancise who presided over that already long delayed matter. Here are the key notices:

[CB-CDA 2017-105]	06/10/2017	Notice	Online Music Services (SOCAN: 2014-2018; Re:Sound: 2013-2018; CSI: 2014-2018; CMRRA: 2014-2018; SODRAC: 2014-2018; Artisti: 2016-2018)
[CB-CDA 2017-106]	06/10/2017	Notice	Internet - Audiovisual Content and User Generated Content (SOCAN: 2014-2018; CMRRA: 2016-2018; SODRAC: 2015-2018)

The first matter is very intertwined with the “making available” morass, which could have and should have been resolved many years ago by means of a simple reference to the Federal Court of Appeal. Instead, the Board allowed what should have been at the most a simple legal question to turn into an immensely complicated and unnecessary battle of international experts and then, in turn, failed to decide the legal issue quickly and separately from the rate determination. The result is five judicial review applications that cannot foreseeably be determined in time to avoid a potential train wreck of a hearing next June or, at the least, immense wasted expense on interrogatories and experts. If the Board follows through on this schedule that will result in a June 2018 hearing before the FCA has ruled (and potential SCC involvement), the resulting potential for chaos is painful to contemplate. If the parties object to this sudden rush, the Board may suggest that it is the parties to blame for the slowness of proceedings. On the other hand, parties may have their own reasons at this time for being deferential to the Board on this file. There is plenty of blame to attribute all around for the present state of affairs – and at this point, undue haste may create even more waste.

On both of the above files, there are a great many other notices that follow, which can be found here.

The Board’s apparently sudden and  frenetic activity -  especially in the face of active judicial review that could render much of this to be a waste of considerable time and resources - is doubtless going to be perceived as being a reaction to the Senate and the Government’s concern and  consultation effort concerning the Board and the S. 92 review about to begin. Whether or not the Board can get to these hearings by May and June of 2018 - or whether the many parties so accustomed to slower and more leisurely proceedings let this happen – remains to be seen. Whether the consequences of this new infusion of administrative adrenalin with lead to clarity or chaos also remains to be seen.

The obvious solution to the overall problems at the Board that can no longer be ignored is that the Government should ensure through regulations and, if necessary, legislation, that:

• Timelines are set, as in the case of PMNOC matters, that result in tariffs being determined with reasons within a finite time. If 24 months works for pharmaceutical patents, it should also work for Copyright Board tariffs with no exceptions.
• Copyright Board tariffs should never be retroactive – or at most only minimally so to the necessary extent, consistent with Supreme Court of Canada jurisprudence going back to 1954. See Maple Leaf Broadcasting v. Composers, Authors and Publishers Association of Canada Ltd. [1954] SCR 624 at p. 631. See also Canadian Broadcasting Corp. v. SODRAC 2003 Inc., [2015] 3 SCR 615, 2015 SCC 57 (CanLII) at paras 109-111 where I, along with Prof. Ariel Katz and Prof. David Lametti, as he then was, succeeded in getting retroactivity on to the Supreme Court’s radar screen in the modern era.

Longer term solutions, such as a change of “machinery” that might create a new tribunal perhaps merged with the Competition Tribunal, should also be considered, as I have already suggested to the Senate and in the current consultation.

HPK

Submissions Posted on Canada's Copyright Board - the Consultation Process

http://lotta56sparks.ca/56-sparks-canadas-most-famous-address/

The papers submitted re consultations re the Copyright Board have just been published here.

There’s lots to say. But I would first note that Music Canada – the leading lobby group for the Canadian music industry – has highlighted the mandatory tariff issue and mentioned the York University case by name, along with “the K-12 and post-secondary markets”:

Music Canada also notes a concerning development whereby users are taking the position that they have the right to elect whether they want to be bound by certified tariffs set by the Board, even when they make uses of works covered by tariffs.17 This has the potential to undermine participation in the tariff process and makes enforcement of tariffs more difficult. Music Canada does not agree that users have the right to election to opt out of approved tariffs (or interim or continuation tariffs) certified under the section 67 or 70.1 tariff process. However, clarity in this regard would usefully put an end to this process which undermines the Board’s legitimacy and process.

See page 13 of the Music Canada submission along with the footnote on that page.

This underscores the importance of Prof. Katz’s comments in his recent blog about the York University decision, which should be read again  by all those contemplating an intervention in the appeal. 

My own submission about the Board, which is NOT 233 pages long but rather only a modest 36 pages in length is here. Many of the links in it aren’t working and got lost on their way to the Government website. I’ll try to post a version with working links when I get a chance.

HPK

Copibec Class action against Université Laval - Update and Opt-out information - Deadline is October 16, 2017

For interested readers, here is Copibec’s website with information about its controversial class action against Université Laval in the Quebec Superior Court: https://www.copibec.ca/en/class-action-against-universite-laval

Here  is the form for opting-out: https://www.copibec.ca/medias/files/Action_collective/Opt_out%20form.pdf

The deadline for opting out is Monday, October 16, 2017.

Here is some backbground on this case from my blog of February 14, 2017.

HPK

Access Copyright v York University - Copy of Notice of Appeal Filed September 22, 2017

Here, thanks to the efforts of our articling student Scott Tremblay who obtained this from the Court, is York's Notice of Appeal.

I will have something to say about this at a later date.

Potential interveners take note.

HPK

Access Copyright v York University Files its Notice of Appeal - Waiting for a Copy

York University has finally - just 10 days ahead of  the extended deadline of October 2, 2017  provided by the Rules because it's summer - filed its Notice of Appeal on Friday, September 22, 2017. HT to @amacek and his wonderful notification service available here.

I've asked York's Counsel for a copy. Otherwise, I'll have to get it from the Court - which could take some time, unless I get lucky. It's a public document - but that does not necessarily mean it's available to the public as soon as it's filed.

I know everyone is interested and potential interveners will be getting ready to start their engines.... so stay tuned....

If anyone gets it sooner than me, please pass it along and I'll post it - with or without acknowledgement of the source, as you wish. As I say, it's a public document.

Anyway, here's the Court's Docket entry below....

HPK

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Proceedings Queries

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Additional information on A-259-17

Table listing additional information

Type	Nature of Proceeding	Office	Language	Type of Action	Filing date
Federal Court of Appeal	Appeal (S.27 - Final) - Copyright Act	Toronto	English	Non-Action	2017-09-22

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Party Information

Table listing party information

Party Name	Solicitor	Lawyer(s) / file no
YORK UNIVERSITY	OSLER, HOSKIN & HARCOURT LLP	COTTER, JOHN C
CANADIAN COPYRIGHT LICENSING AGENCY (THE)	-	-

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Related Cases

Table listing related cases information

Court Number	Style of Cause	Nature of Proceeding
T-578-13	THE CANADIAN COPYRIGHT LICENSING AGENCY v. YORK UNIVERSITY	Copyright Infringement [Actions]

The Blacklock’s Perfectly Predictable Costs Appeal Dismissal & a Preview of Potential Problems

The Federal Court of Appeal (“FCA”) heard Blacklock’s appeal of Justice Barnes’ costs ruling on September 12, 2017 and perfectly predictably dismissed the appeal with costs. The FCA not only ruled “from the bench” but, as I understand, did not even call upon the Attorney General of Canada to respond. As practicing lawyers well know, this means that Blacklock’s did not raise any issues that even needed an oral response. This was a decidedly decisive disposition.

The FCA’s judgment, which is somewhat surprisingly specific for a judgment from the bench, is available here. Notably, the FCA:

•           Agreed with Justice Barnes that the issues – primarily the fair dealing issue – were “well-settled in the jurisprudence and, thus, neither novel nor of public significance” (para. 5)
•           Ruled that Justice Barnes’ costs award was “amply supported” by the factors in the rules and that the Federal Court considered, among other things:

o   the respondent’s success in the litigation and the one-sided nature of the outcome,

o   the appellant’s litigation strategy,

o   the existence of a settlement offer,

o   the complexity of the litigation, and

o   the actual costs of the respondent.

(para7)

The FCA effectively concluded that Blacklock’s submission that “the Federal Court should not have relied upon the appellant’s non-acceptance of the respondent’s settlement offer because this was a test case designed to settle issues arising in related proceedings” worked against Blacklock’s. Indeed, the Court concluded that “Further, to the extent this was a test case, this could have prompted a higher level of activity by the respondent and, thus, would have justified an elevated costs award.”

Appeals of Judge’s costs judgments are very rarely successful because such judgments are “quintessentially discretionary” and an appellant must establish “palpable and overriding error” in order to succeed. This case was particularly predictable because Justice Barnes judgment was so careful and detailed. What was not so obviously predictable is the extent to which the FCA actually reinforced Justice Barnes’ costs ruling. The FCA awarded costs of $3,500 for the appeal.

In my earlier blog entitled Blacklock’s Litany of Litigation Lengthens - Update on Four More Federal Court Actions, I made the following comments about Blacklock’s appeal of Justice Barnes’ $65,000 costs award:

 Costs judgments are normally very difficult to appeal successfully.  The $65,000 award in this instance flows directly from the normal  “mid-point of Column III” approach as explained by Justice Barnes in paragraph 6 of the costs judgment.  The Government was also able to benefit from the “double costs” rule because of “the failure by the Plaintiff to accept an early settlement offer in the amount of $2,000.00” (para. 4). Costs decisions by judges are “quintessentially discretionary” and are rarely set aside on appeal.

…

Blacklock’s’ resounding initial defeat on the fair dealing issue in Justice Barnes’ careful and convincing judgment (not appealed) and the resulting $65,000 costs award (which is being appealed) together with the Government’s clear and able determination to fight back and its success to date may be of interest to all Blacklock’s copyright litigation defendants, including those outside the Government, who may be considering with their counsel their next steps, such as whether or not to settle or to continue to fight back and to utilize strategic settlement offers.

Blacklock’s faces some further predictable problems. It would seem apparent that Blacklock’s “litany of litigation”, as I have called it, is not going very well for it. It has suffered three very clear and explicit setbacks at the hands of very experienced judges of the Federal Court and Federal Court of Appeal. Blacklock’s did not appeal the substantive judgment of Justice Barnes, which is a now a binding precedent that will be applied by the Federal Court in similar cases. Justice Barnes’s substantive and costs judgments and the FCA’s approval of the latter are all unusually tough, trenchant, and presumably very problematic for Blacklock’s. There is not only a clear comment about the “well-settled” jurisprudence on fair dealing. There is also a clear roadmap on the record as to the strategic use of settlement offers that may enable a defendant to recover “double costs” in appropriate circumstances in similar cases if Blacklock’s persists and insists on going to trial.

It is important to note Justice Barnes’s words in his costs judgment that has just been upheld:

[7] …I also reject the Plaintiff's argument that this case raised "strong public interest considerations". Rather, this case was about the Plaintiff's attempt to recover disproportionate damages without any apparent consideration to the legal merits of the claim or to the costs that it imposed on the taxpayers of Canada.

[8] Any reporter with the barest understanding of copyright law could not have reasonably concluded that the Department's limited use of the subject news articles represented a copyright infringement. Indeed, the fair dealing protection afforded by section 29 of the Copyright Act, RSC, 1985, c C-42, is so obviously applicable to the acknowledged facts of this case that the litigation should never have been commenced let alone carried to trial.

 [9] I am also troubled by Plaintiff's attempt to claim an excessive amount of damages beginning with its demand for compensation completely divorced from the Department's limited use of the two articles. In no circumstances would Blacklock's losses have exceeded the cost of individual subscriptions by the six officials who read the articles; yet Blacklock's demanded a license fee equivalent to its bulk subscription rate of over $17,000.00. This practice appears to be consistent with Blacklock's usual approach which is to hunt down, by Access to Information requests, alleged infringers and then demand compensation based on an unwarranted and self-serving assertion of indiscriminate and wide-spread infringement. The record discloses that in several instances government departments acquiesced for business reasons and paid the full amounts demanded. In this instance the Department appropriately took a hard line and succeeded in its defence.

(highlight, underline and emphasis added)

Blacklock’s faces other potential procedural hurdles and predicaments depending on the results of case management proceedings underway. There will be an important case management hearing at 90 Sparks St. in Ottawa on Monday, September 18, 2017 at 10:30 AM involving 13 cases against the Government of Canada and some of its agencies. It will deal, inter alia, with whether there should be a trial on the question of whether Blacklock’s even has standing to bring these actions and, whether, in the event that liability is ever established, what the quantum of damages might be. Blacklock’s is asking that it be allowed to proceed to trial against Health Canada and one “non-AG Canada Defendant” and that “pending the disposition of the actions described above, all other actions case managed by the Federal Court relating to copyright infringement of the Plaintiff be stayed”.

I shall follow up in due course.

HPK

 

 

Blacklock's Loses Appeal of Justice Barnes' Costs Order: Dismissed from the Bench

From the Federal Court of Appeal Docket:

Court Number :	A-25-17
Style of Cause :	1395804 ONTARIO LTD. (c.o.b. BLACKLOCK'S REPORTER) v. AGC
Proceeding Category :	Appeals	Nature :	Appeal (S.27 - Final) - By or Against the Crown
Type of Action :	Non-Action

34 records found for court number A-25-17

Doc	Date Filed	Office	Recorded Entry Summary
-	2017-09-12	Ottawa	This matter comes on for hearing on 12-SEP-2017 at Ottawa before The Honourable Mr. Justice Stratas The Honourable Mr. Justice Webb The Honourable Mr. Justice Near Appearances: Me Yavar Hameed (613) 232-2688 # 228 for the appellant Me Sarah Sherhols (613) 670-8492 for the respondent Language of Hearing: E Court Usher: M. Young, Shawn Duration: on 12-SEP-2017 from 09:30 to 10:45 Courtroom : Federal Court of Appeal Courtroom - Ottawa Court Registrar Therese Fadel Total duration: 1h 15min. Before the Court: appeal Result: dismissed Reasons delivered from the Bench Documents filed at hearing: 21 "Bill of Costs" Comments: Dars was used for the Hearing of this matter. Minutes of Hearing entered in Vol. 223 page(s) 229 - 231 Abstract of Hearing placed on file

(highlight added)

Blacklock's has lost its appeal of Justice Barne's costs ruling. I will post reasons when they are available.

It will be recalled that Blacklock's did not appeal Justice Barnes' substantive decision.

HPK

Copyright Consternation & Confusion on Canadian Campuses as York Cogitates its Appeal

https://upload.wikimedia.org/wikipedia/en/8/87/Captain_copyright.jpg

The Canadian educational community awaits York University’s Notice of Appeal from the July 12, 2017 decision of the Federal Court in Access Copyright v. York University. Regrettably, in the meantime, two major universities – namely Western and York itself – have recently issued copyright statements that appear to be premature, ill-considered and even incorrect reactions to the York decision.

Western appears to have taken upon itself an automated total “book burning” approach to pre-existing online course material. Apparently, instead of relying on the general users’ right fair dealing provision in s. 29 of the Copyright Act, it has slavishly followed the destruction provision of the limited and arguably ill-conceived, poorly drafted and unnecessary “lesson” exception in s. 30.01. Such a seemingly misplaced reliance is directly contrary to the unanimous ruling of the Supreme Court of Canada at para. 84 of the CCH decision, where the Court held that it is unnecessary to rely on a specific exemption when the general fair dealing provision is available.  Obviously, any archived course material that has been legally posted with permission, by way of fair dealing, or otherwise does not need to be deleted. Western’s denial that this has anything to do with the York decision is unconvincing in light of an earlier announcement and, frankly, rings hollow in terms of the newly stated rationale of “system maintenance”.

Perhaps even more astonishingly, York issued the following overreaching and incorrect prohibition just 8 days after the decision was released: “Copyright law does not permit downloaded files (PDFs, etc.) to be loaded directly into Moodle or other course web sites.” Since when does copyright law categorically prohibit the uploading of “downloaded files” to a course website? Such uploading and sharing may very well be done legally, for example on the basis of permission, an implied right, pursuant to users’ fair dealing rights, or because the work may be in the public domain.

Both of these announcements are bound to cause considerable consternation and confusion just as classes are about to begin. The source for these highly problematic pronouncements is unclear in both instances. If two such high-powered institutions with access to so much copyright expertise (which, in the case of law faculty, was probably not called upon) can overreact in this manner, one shudders to think what institutions with less available expertise will be doing.

It may be noted that Access Copyright has so far refrained from availing itself of Justice Phelan’s unusual invitation to “apply for an injunction prohibiting the Defendant from reproducing or authorizing reproduction of all copyright protected works falling within the Approved Tariff and offering such reproduction for sale, rent or distribution until all amounts of royalties plus interest are paid.” Instead, York seems only too eager to effectively enjoin itself from what appears to be perfectly normal and indeed essential pedagogical practice.

York University has publicly committed to appeal the July 12, 2017 judgment of the Federal Court. Although it has until October 2, 2017 to file such a document (because July and August do not count for this time calculation), the normal deadline is 30 days after the decision. It is to be hoped that York does not delay much longer as the fall term begins. Such a document would, at least, provide the academic community with a “complete and concise statement of the grounds intended to be argued”, as required by the Federal Courts Rules. This may provide some further insight into how York is reacting to the ruling and what York believes it can overturn in this decision and generally on what basis. It would also, crucially, enable potential interveners to further assess whether and how they may wish to apply for leave to intervene in order to assist the Court with respect to arguments that could potentially be instrumental in determining the outcome (for example, see Prof. Katz’ blog here).

HPK

August 31, 2017:

PS - Following the above posting, York has replaced the above incorrect statement with the following:

Many of York University's licences do not permit copyright-protected content to be uploaded directly to Moodle or other Learning Management Systems.

That statement is somewhat ambiguous and hopefully does not suggest that a licensor can impose any conditions on works not covered by the particular licence. Moreover, the issue of whether a licensor can impose enforceable restrictions on users' fair dealing rights as provided by statute is an open question, particularly in light of two Supreme Court of Canada decisions. More about that another day.

Canada's Diva of Doodlers has Definitively Distilled in this Divine Depiction the Diverging Directions of Debate on Canadian Copyright

Giulia Forsythe, Canada's Diva of Doodlers, has Definitively Distilled in this Divine Depiction of the Diverging Directions of Debate on the Canadian copyright front in these two Distinctive Doodles from last weeks October 17, 2017 #OUCEL17 Copyright event that she organized for university copyright professionals at the University of Ottawa.

Here are the slides for my talk.

My talk is depicted above. Michael Geist's is depicted below.

Thanks, Giulia, for the invite and distinguished doodles.

HPK

Rogers Seeks Leave to Appeal to Supreme Court of Canada re Cost Recovery in Voltage Reverse Class Action

Rogers is seeking leave to appeal the recent Federal Court of Appeal ruling that denied it cost recovery for compliance with the Voltage court order in the reverse class action litigation.

Some background from my blog is here.

A news report is here.

Rogers’ Leave to Appeal material is here.

Rogers summarizes the basis for its leave motion as follows:

Rogers therefore seeks leave to appeal so the Court can provide guidance on the following issues:

 1. What are the obligations imposed on Canadian ISPs by the Notice and Notice Provisions?

2. Do those obligations supplant ordinary principles related to third-party discovery orders, and in particular, the principle that a third party should be reimbursed for the costs it incurs?

It will be interesting to see if Rogers gets leave, and if so who may wish to intervene.

HPK

Access Copyright’s Costs Motion Material Makes for Interesting Reading

Access Copyright as the prevailing party in the recently decided trial judgment in the Federal Court is seeking to recover its legal costs from York University, as is normal. It is asking for a lump sum of $549,703 which consists of $321,000 for fees and $228,703 for disbursements and HST. Its material filed on August 10, 2017 is as follows:

• notice of motion
• written representations
• affidavit of Roanie Levy

York University will have a chance to file written submissions in response. It may be noted that cost recovery in the Federal Court is normally only a portion of the party’s actual costs. It also may be noted that cost recovery normally proceeds even while an appeal is pending, unless there is a stay order in place and this is rare. Apparently, York has made no attempt to stay the costs order process or any other aspect of Justice Phelan’s judgment.

York’s costs will not become public unless and until it succeeds on appeal and gets an order for costs below and files material in support of its costs claim. What we do know so far is that in December 2015, it was estimated that this litigation would cost York and contributing institutions “hundreds of thousands of dollars, if not a million”, according to York GC Maureen Armstrong in an interview reported on December 29, 2015.  I have no information as to whether that estimate is still valid.

Access Copyright is seeking a lump-sum award approximating 50% of the expenses incurred by it to employ its salaried litigation counsel in this litigation and 100% of its out-of-pocket disbursements. The judgment lists three counsel for Access Copyright. By comparison, York University has five counsel listed in the judgment from a large outside law firm.

For those interested in how this case unfolded, there are some interesting details in Roanie Levy’s affidavit.

HPK

Access Copyright Seeks ~$550,000 in Costs from York U for Phase I of Federal Court Litigation

On August 10, 2017 Access Copyright filed a motion for costs which appears on the docket as follows:

Notice of Motion contained within a Motion Record on behalf of Plaintiff in writing to be placed before the Court in Ottawa for an Order awarding the plainff a lump sum of $549,703 in accordance with the award of of costs made in its favour in the Judgment issued 12-JUL-2017; and such further relief filed on 10-AUG-2017

(highlight added) 

I will likely have more to say about this in due course. But, for the moment, suffice it to say that this sought-after figure of ~$550,000 is only for Phase I and, of course, does not include any potential damages. 

HPK