The more than ten-year-old
effort by Access Copyright (“AC”) to impose a “mandatory tariff” through the
Copyright Board on Canadian educational institutions is over in a quick,
decisive, and devastating unanimous judgment
from Justice Rosalie Abella
of the Supreme Court of Canada (“SCC”).
85 years of legislative policy and SCC jurisprudence are re-affirmed,
vindicated, and continued. No rational and competent Cabinet of any political
stripe should even think about trying to overturn this result.
Bottom line:
The Court held that:
- AC’s tariff as
approved by the Copyright Board is not mandatory for users
- It is unnecessary and inappropriate
to issue a declaration about fair dealing in these circumstances
- Nonetheless, there
were serious errors in the Courts below noted concerning their pronouncements about
fair dealing, e.g. re “aggregate” copying.
The Court also provided
additional guidance on how guidelines can “actualize” fair dealing rights and
provided useful guidance for the educational sector to move on – without the
need to seek gratuitous and inappropriate declarations from Courts.
These three main aspects
of the Court’s judgment reflect the intervention of my client, the Canadian Association of
Research Libraries (“CARL”). I can proudly say that our arguments were clearly
very influential and, apparently, even determinative. The other clearly influential
intervention that helped to carry the day was from my friend and colleague Prof.
Ariel Katz and the Author’s Alliance, who showed that Access Copyright by no
means represents the interests of all authors and certainly not the interests
of most of the authors whose works are actually used in Canadian universities. Other
interveners also provided useful contributions, e.g. Universities Canada and
the Canadian Association of University Teachers.
Justice Rosalie Abella
heard the AC v. York & York v. AC case on May 31, 2021 as her
last case before her retirement from the SCC on July 1, 2021. Her unanimous and
unusually prompt yet extremely detailed and substantial judgment was rendered on
July 30, 2021 – just ten weeks after the SCC heard this case, which was
technically two appeals and which included 17 interveners. This remarkable judgment summarizes the consistent
policy and jurisprudence of Canadian copyright law on collective administration
and fair dealing since 1936. This landmark judgement will crown her luminous
and lasting jurisprudential legacy built upon her previous important judgments
in copyright and so many other areas. This may well prove to be the most
important copyright judgment to date in Canada.
From a purely
practical bottom-line standpoint, if the decision had gone the other way,
Canadian universities could have been on the hook for hundreds of millions of
dollars or more for retroactive and prospective payments that would be been a windfall
to AC and a disaster for higher education and innovation. Not to mention much
more litigation and potentially one or more further trips to the SCC. We now
have litigation closure on this for the foreseeable future – but the lobbying
to undo this result has already begun.
Prof. Katz was also
the author of the two “Spectre” papers that were so influential in the Court’s
reasoning and are cited several times. He and Prof. David Lametti, as he then
was, before he became a Member of Parliament and then Minister of Justice, were
my colleagues, co-counsel and clients in an intervention in the immediate
forerunner to the current SCC decision, namely, the case of Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0> (“CBC v.
SORRAC”) decided in the SCC just six years ago by now retired Justice
Marshall Rothstein. See paras. 101 to 113 which held, based upon our
intervention, that:
[113] I find that licences fixed by the Board do
not have mandatory binding force over a user; the Board has the statutory
authority to fix the terms of licences pursuant to s. 70.2, but a user retains
the ability to decide whether to become a licensee and operate pursuant to that
licence, or to decline.
The Simplified History
of this Litigation
Most of the immensely
long and convoluted history of this
litigation and the Copyright Board
proceeding, which concluded more
than nine years after it began
and was mostly unopposed, has been
discussed, sometimes very critically, on
my and Ariel Katz’ blogs. Here are some key points:
- AC obtained an “Interim Tariff” from the Copyright Board just in time for Christmas
on December 23, 2010. Universities Canada (then AUCC) did nothing to get this interim
tariff judicially reviewed, although that would arguably have been a viable possibility
at the time. AUCC instead launched a predictably unsuccessful attempt to force
the Board to issue transactional licenses. AUCC was represented by the Osler
law firm, which subsequently represented York in the litigation and which was responsible
for the Fair Dealing Guidelines involved in this litigation. Osler’s has also
represented Re:Sound, the second largest collective in terms of earnings in
Canada. Re:Sound represents the major record companies – dominated
overwhelmingly by three American giants. Back in the 1990’s, Osler had also
represented Access Copyright, or CanCopy as it was then called.
- AC sued York in 2013.
York did nothing to try to stop the litigation in a summary manner (e.g. on the
basis that that the tariff is not mandatory, AC lacks standing, no cause of
action, etc.) and instead launched a counterclaim based on the claim that anything
copied within the scope of its fair dealing guidelines was fair game. These guidelines
had been developed by Osler’s and AUCC.
- AUCC withdrew from
the Copyright Board proceedings in 2012 concerning the Post-Secondary
tariff in 2004 – presumably having exhausted its budget for the Board
proceedings and agreed to a controversial Model Licence deal that very few
Universities went along with.
- In the 2015 CBC v.
SODRAC case, Prof. Ariel Katz, Prof. David Lametti, as the then was, and I
as counsel persuaded Justice Rothstein and the rest of the Supreme Court by way
of intervention that tariffs in the voluntary so-called “arbitration” regime of
the Copyright Board weren’t mandatory. If tariffs under the voluntary regime
weren’t mandatory, a fortiori then why should tariffs be mandatory under
non-voluntary and immensely expensive “in rem” proceedings that AC was
pursing at the Board? However, AC was simply in denial of this result and York
was barely cognizant of it until much later.
- The AC v. York litigation continued at
immense expense culminating in a three-week trial in 2016 and a very
controversial judgment by Phelan, J. of the Federal Court in 2017. See Canadian Copyright Licensing Agency v. York University, 2017 FC 669 (CanLII), [2018] 2 FCR 43, <https://canlii.ca/t/h4s07> During that proceeding, York focussed only on
whether the “interim” tariff was mandatory and suggested for some reason that
the CBC v. SODRAC judgment was merely “instructive” and that it was not necessary
to consider whether final approved tariffs were mandatory – even though the
trial judge himself had questioned whether this could resolve the whole case.
The result was discussed in a very frank, important and widely read blog by
Ariel Katz entitled Access Copyright v. York University: An Anatomy
of a Predictable But Avoidable Loss
- Anyway, York kept the
mandatory tariff issue alive on appeal, although it still focussed mostly on
the fair dealing counterclaim.
- In the Federal Court
of Appeal (“FCA”), Justice Pelletier got the mandatory tariff issue absolutely
right – mainly by relying on Ariel Katz’s Spectre I paper that York had thankfully
cited. See York University v. Canadian Copyright
Licensing Agency, 2020 FCA 77 (CanLII),
<https://canlii.ca/t/j6lsb>
- In the SCC, York
finally fully engaged on the mandatory tariff issue with an very good factum in
response to York’s appeal of the mandatory tariff ruling from the FCA. AC
dismissed the CBC v. SODRAC judgement as a one-page afterthought in its
appeal factum on the mandatory tariff.
- York also brought in
the well-known barrister Guy Pratte for the oral argument. He is one of the
last of the breed of all around appellate barristers who can advocate just
about any case and come quickly up to speed on every detail. His performance
was excellent and should be watched by anyone who aspires to appear at the SCC.
He was extremely clear and in command. And he knew every detail and could
answer every question complete with page or paragraph reference without
hesitation or having to shuffle papers around.
Key findings in the
Judgment In Justice Abella’s own words:
Justice Abella’s
judgment is a monument of lucidity, thoroughness and readability. It is a “must
read” in its entirety for anyone interested in Canadian copyright law. However,
for readers convenience, I take the liberty of including the following key
quotes from Justice Abella’s judgment (with highlight added):
[19] For the following reasons, I agree with the Federal Court
of Appeal that the tariff is not enforceable against York University. But I
would not grant York’s requested Declaration, nor endorse the fair dealing
analysis conducted by the Federal Court and the Federal Court of Appeal.
[39] As matter of legislative coherence, it would be incongruous if
royalties fixed in the context of licence negotiations between a collective
society and a specific user were voluntary, but those set in a general tariff
were mandatory.
[40] Access Copyright argued in the alternative
that pursuant to s. 68.2(1) Board approved royalties operate as a remedy for
infringement against a user who has not accepted a licence. But there is
nothing in the legislation to suggest that Parliament intended that Board
approved tariffs operate as pre-determined infringement damages. Parliament is
well aware of how to create a statutory damages scheme. It did so in s. 38.1,
which was enacted in 1997 at the same time as key collective administration
amendments. Section
68.2(1) could not have been meant to silently create a second statutory damages
scheme, where “amounts are predetermined by the Board, and then imposed without
regard to the actual circumstances of the case and without any proportionality
to either the user’s behaviour or copyright owners’ actual damage” (“Spectre
II”, at p. 58).
[54] This was consistent with the purpose of the
regime, enacted as Parliament became “aware of the necessity of regulating the
exercise of the power acquired by” performing rights societies (Vigneux (1943),
at p. 352, per Duff C.J.). It
would be discordant with this purpose to empower a society to foist a licence
on an unwilling user.
[64] But a collective society’s market power and
effectiveness at achieving its goals is not guaranteed by the Copyright Act. Nothing in the Act is designed
to prop-up collectives that have become less valuable to users and/or
rights-holders. As Professor Daniel J. Gervais explains:
.
. . Canadian rightsholders may create a new Collective Management Organization
if they are dissatisfied with an existing one. In fact, users themselves could
do the same, as was suggested by a well-known author in the area of
reprography. [Emphasis in original.]
(“Collective
Management of Copyright and Neighbouring Rights in Canada: An International
Perspective” (2002), 1 C.J.L.T. 21, at p. 26; see also Department of Canadian
Heritage, Collective Management of Copyright and Neighbouring Rights in Canada:
An International Perspective (2001), at p. 26; Howard P. Knopf, “Copyright Collectivity in the Canadian
Academic Community: An Alternative to the Status Quo?” (1999), 14 I.P.J. 109.)
[65] If a collective society does not have a large enough repertoire or
other sources emerge to provide better value, users may find that the
collective is not “the most cost-effective way to obtain licences”, and might
prefer to “negotiate with the right-holders directly, or through other
intermediaries” (“Spectre I”, at p. 159).
[67] Operating together, these price-setting powers of the Board protect
users from the potential exertion of unfair market power by collective
societies. This was clearly the purpose of the 1936 amendments
empowering the Copyright Appeal Board to approve statements of royalties.
Government reports and legislative history show that this purpose persisted
through the 1988 and 1997 amendments.
[71] Access Copyright’s interpretation of s. 68.2(1) is not only unsupported
by the purpose of the Board’s price-setting role, it is, respectfully, also in
direct conflict with that purpose. Instead of operating as a part of a scheme
designed to control collective societies’ potentially unfair market power,
Access Copyright’s interpretation would turn tariffs into a plainly anti
competitive tool, boosting collective societies’ power to the detriment of
users.
[72] The legal consequence of Access Copyright’s
mandatory tariff theory would be that a user would be liable to pay royalties
in full as soon as it became responsible for any infringing use of a work
within a collective society’s repertoire. Under the final 2011-2014 Access
Copyright tariff for post-secondary educational institutions, for example, York
would be liable to pay $24.80 for each of its 45,000 full time equivalent
students, totalling over one million dollars per year, as soon as it made a
single infringing use within Access Copyright’s repertoire. For a university
that attempts to clear its copyright obligations using alternative licences and
fair dealing, a single
infringing use — one that was not authorized by fair dealing or independently
licensed — could thereby become a tripwire making the university liable
to pay the full royalties in a tariff. This “Sword of Damocles”, as the intervener the Canadian
Association of Research Libraries aptly put it, renders a university’s freedom
to clear its copyright obligations without involving Access Copyright
completely illusory.
[74] The source of Access Copyright’s grievance,
it seems to me, stems not so much from the voluntary nature of an approved
tariff, but from the fact that Access Copyright cannot initiate infringement
actions on behalf of its members. To the extent that this is a problem, it has
nothing to do with s. 68.2(1) and is largely outside the scope of this appeal. But it is important to recall
that Access Copyright chooses to operate on the terms of a non-exclusive
licence that does not give it the right to sue for infringement in respect of
the rights it administers. Nothing compels Access Copyright and its members to
operate this way.
[76] It is of course open to Parliament to amend the Copyright Act if and
when it sees fit to make collective infringement actions more readily
available. But under the existing relevant legislation in this appeal, an
approved tariff is not binding against a user who does not accept a licence.
[77] I would therefore dismiss Access Copyright’s appeal. This brings
us to York’s appeal from the dismissal of its counterclaim seeking declaratory
relief.
[81] York’s appeal to this Court seeks the
Declaration from this Court that was denied by the Federal Court and the
Federal Court of Appeal.
[82] In my view, it is not appropriate to entertain York’s request for
declaratory relief in these proceedings. This Court recently stated the
test for when declaratory relief may be granted in Daniels v. Canada (Indian
Affairs and Northern Development), [2016] 1 S.C.R. 99, per Abella J.:
The
party seeking relief must establish that the court has jurisdiction to hear the
issue, that the question is real and not theoretical, and that the party
raising the issue has a genuine interest in its resolution. A declaration can
only be granted if it will have practical utility, that is, if it will settle a
“live controversy” between the parties. [Citation omitted; para. 11.]…
[85] There is no doubt, as York argued, that guidelines are important to an
educational institution’s ability to actualize fair dealing for its students.
As Professor Samuel E. Trosow writes, a “general lack of understanding about
basic copyright rights and obligations” serves as a “serious impedimen[t] . . .
to the realization of fair dealing as a substantive users’ right” in the
educational context (“Bill C-32 and the Educational Sector: Overcoming
Impediments to Fair Dealing”, in Michael Geist, ed., From “Radical Extremism”
to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (2010), 541,
at p. 542). Institutionalized guidelines can help overcome this impediment.
[86] But the usefulness of guidelines in theory does not provide the Court
with a sound basis for entertaining declaratory relief without a live dispute
between the parties or when those whose rights are at stake are not privy to
the proceedings.
[87] While I therefore agree that the requested Declaration should not be
granted, this should not be construed as endorsing the reasoning of the Federal
Court and Federal Court of Appeal on the fair dealing issue. There are some
significant jurisprudential problems with those aspects of their judgments that
warrant comment.
[88] In commenting on those errors, it is important to emphasize that our
reasons do not decide the issue of fair dealing, which can only be determined
in a factual context. Rather, the objective is to correct some aspects of the
reasoning from the courts under review which, respectfully, depart from this
Court’s jurisprudence. While correcting the errors committed by the
Federal Court and Court of Appeal favours the position argued before this Court
by York, these reasons address only some of the factors that make up the fair
dealing analysis, an analysis that requires consideration of facts and factors
not addressed here.
[89] The main problem with their analysis was that they approached the
fairness analysis exclusively from the institutional perspective. This error
tainted their analysis of several fairness factors. By anchoring the analysis
in the institutional nature of the copying and York’s purported commercial
purpose, the nature of fair dealing as a user’s right was overlooked and the
fairness assessment was over before it began.
[102] In other words, contrary to the Federal Court of Appeal’s view, in the
educational context it is not only the institutional perspective that matters.
When teaching staff at a university make copies for their students’ education,
they are not “hid[ing] behind the shield of the user’s allowable purpose in
order to engage in a separate purpose that tends to make the dealing unfair”.
[103] It was therefore an error for the Court of
Appeal, in addressing the purpose of the dealing, to hold that it is only the
“institution’s perspective that matters” and that York’s financial purpose was
a “clear indication of unfairness” (paras. 238 and 241). Funds “saved” by proper exercise of the fair
dealing right go to the University’s core objective of education, not to some
ulterior commercial purpose (see Lisa Macklem and Samuel Trosow, “Fair
Dealing, Online Teaching and Technological Neutrality: Lessons From the
COVID-19 Crisis” (2020), 32 I.P.J. 215, at p. 238). The purpose of copying
conducted by university teachers for student use is for the student’s
education. But in every case, all relevant facts must be taken into account in
order to determine the fairness of the dealing.
[104] And the trial judge’s criticism of York’s Guidelines on the basis that
different portions of a single work could be distributed to different students,
such that an author’s entire work could end up being distributed in the
aggregate, is also contradicted by SOCAN, which held that “[s]ince fair
dealing is a ‘user’s’ right, the ‘amount of the dealing’ factor should be
assessed based on the individual use, not the amount of the dealing in the
aggregate” (para. 41; see also Alberta (Education), at para. 29).
[105] And while it is true that “aggregate dissemination” is
“considered under the ‘character of the dealing’ factor” (SOCAN, at
para. 42; see also CCH, at para. 55; Alberta (Education), at para. 29), as this Court cautioned in
SOCAN, “large-scale organized dealings” are not “inherently unfair” (para. 43).
In SOCAN, where copies could easily be distributed across the internet in large
numbers, this Court warned that focussing on the “aggregate” amount of dealing
could “lead to disproportionate findings of unfairness when compared with
non-digital works” (para. 43). By extension, the character of the dealing factor must be carefully
applied in the university context, where dealings conducted by larger
universities on behalf of their students could lead to findings of unfairness
when compared to smaller universities. This would be discordant with the nature of fair dealing
as a user’s right.
[106] At the end of the day, the question in a case involving a university’s
fair dealing practices is whether those practices actualize the students’ right
to receive course material for educational purposes in a fair manner,
consistent with the underlying balance between users’ rights and creators’
rights in the Act. Since we are not deciding the merits of the fair dealing
appeal brought by York, there is no reason to answer the question in this case.
[107] In light of these reasons, I would dismiss York’s appeal
from the dismissal of its counterclaim but, in the circumstances, without
costs.
[108] I would dismiss Access Copyright’s appeal with costs.
En
passant, it’s interesting that AC’s
appeal was dismissed with costs and York’s was dismissed without costs. That
may signify a degree of sympathy with York’s position on fair dealing. Taxed costs in the
SCC are not
significant compared to lower courts. However, it will be very interesting to
find out – if we ever do – how the costs below, which must be at least in the
significant seven figures on each side – are now ultimately dealt with. AC got
costs both for its action and for York’s failed counterclaim at trial. The FCA
awarded costs for York on its appeal of the mandatory tariff issue but against
it on the fair dealing issue. The final
result may be a wash overall. That would leave both sides having to eat their
own costs, which are likely to be huge. Clearly, any fight over costs below is
bound to be complex, lengthy and expensive.
Implications
for Collectives Going Forward
If this decision had
gone the other way on the mandatory tariff issue, the result would have been
years more very expensive litigation and a potential retroactive cost of
hundreds of million of dollars or more to Canadian universities – not to
mention future costs of far more.
Professors Katz and Lametti
(as he then was) and I succeed in putting the issue of whether the Copyright
Board can award retroactive tariffs clearly on the SCC’s radar screen. See FN 2
of the CBC v. SODRAC judgment.
Access Copyright does
not perform any clearly necessary or even useful service. Its distribution to
average writers is probably less than $100 a year on average. I know this because I’m a member and I get
more than some other even more prolific authors who I know. Very few actual
creators make very much, as former Dean Martin Friedland documented in the heyday of AC in
2007. At that time, the maximum creator affiliate payout was $7,356 and this
tapered off very rapidly after that. And that’s from before the current
litigation began and the Copyright Act was amended to include “education” in s.
29. The Author’s Alliance showed what we all knew – that AC does not represent
the vast majority of academic authors whose works are used at Canadian
universities. Very few Canadian university students will ever be assigned
anything from Margaret Atwood or Alice Munro. AC exists mainly to keep its
executives, staff and lawyers busy and very well paid. It has very little
useful repertoire for the post secondary sector, is happy to charge for
transactional licenses to use public domain material, and has never had any
serious methodology in its basic distribution. “Payback” for those who have actually
published written material may be slightly more methodical – but not in any
obvious way.
The demise of AC’s mandatory
tariff myth may hurt or even prove fatal to AC. Its revenues have been in deep
decline in recent years – not a result of the 2012 legislation clarifying that
“education” is a recognized purpose of fair deal – but as a result of the fact
that it is basically selling little or nothing for a lot of money.
There is major litigation
pending over the recovery by way of refund, damages, or restitution on many
millions of dollars paid by K-12 school boards on the basis of their claim that
tariffs are not mandatory.
Of course, nothing
prevents AC from actually offering a useful license to a useful repertoire at a
reasonable price – say $5 a year or less per FTE – which I’ve been suggesting
for years. That price should now be greatly discounted in view of this
incredibly decisive decision. But AC lacks the repertoire and lacks the
credibility to go down this road. I offered a vision 21 years ago for an alternative
collective that was cited in the SCC judgment.
But, we can rest
assured that AC is predictably going to whine about “telling our stories” and
make up or at least suspiciously spin lots of supposed facts and figures in
order to lobby Ministers to change the law to make tariffs mandatory. The educational sector narrowly dodged such a bullet when an attempt by ISED
bureaucrats to effectively make tariffs mandatory under the guise of
harmonizing statutory damages
was stopped after an earful of negative
reaction from the educational sector.
Nobody should listen
to AC’s lobbying. They are the enemies of innovation in the educational system
in Canada. Our post secondary institutions, with the leadership of my client
CARL and others, have adapted very well without them and do a great job at
showing the post secondary community how to balance,
implement & "actualize" the rights & responsibilities of
authors, publishers, faculty, students and administrators. AC is nothing but a
deadweight loss to the system. AC’s whining about the including of the word
“education” as a purpose of fair dealing in 2012 is nothing but fake news. This
amendment simply clarified the clearly existing state of the law. The
subsequent decline in AC revenues is the result of its alienation of the
educational sector and the evolution of how material is used and paid for, when
required, in the educational sector.
The judgment
will likely have little or no short-term effect on SOCAN – which actually does
have copyright rights – and whose tariffs are, in any event, “de facto”
mandatory for any user who wants to use modern repertoire and not just Bach and
Mozart. The equitable remuneration regime run by Re:Sound is also probably de
facto mandatory for most users of recorded music, as is the retransmission
regime. In all three of these situations, there is currently no other practical
way to clear rights, if needed, other than to deal with the collectives. However,
in the long term, users in these situations may feel empowered to consider
whether their bargaining power may now have increased. Moreover, if there is
reason to doubt the de jure mandatory
nature of these tariffs, other new collectives may begin to feel empowered and
there could be more competition. Stay tuned.
The
decision may affect some other arguably nuisance collectives and tariffs, such
as the media monitoring tariff recently rubber stamped and imposed yet again by the Board after more than two
years of unopposed rumination, apparently without even raising the issue of fair dealing –
which seems like an obvious issue in media monitoring. However, the prohibitive costs and usually absurd and invasive interrogatory process of Board
proceedings, have discouraged any opposition of the tariff over the years. Some
may now wish to consider whether it is indeed legally mandatory.
It won’t
affect the private copying levy, which is indeed mandatory because the
legislation is clear. It is, in fact, the “only” tariff that is clearly
mandatory – because it is a “levy” and the language is clear. We made this point
to the SCC. The Board has shamefully kept this collective on life support for years
for no cogent reason – apparently so that it can live to fight another day, as
it recently has signalled it might do and in view of possible sympathy from the
current crew of some senior bureaucrats and certain Ministers.
The Good News Going
Forward
The post-secondary
sector in Canada can exhale and enjoy the rest of the summer and have less
anxiety about planning curricula that include material that meets the established
tests for fair dealing.
It’s probably a good
idea for all post-secondary – and indeed K-12 – institutions to think about
updating their fair dealing guidelines consistent with the teachings of the
Court in this judgment in order to actualize the fair dealing rights of faculty
and students. Whether this happens in a very coordinated way or more ad-hoc
remains to be seen. However, the AUCC/Universities guidelines were not blessed
as such by the Court and presumably should be updated. They were very
problematic at the time and have not improved with age, especially with the
massive roll-out of eBooks, OER, MOOCs, and the COVID crisis since then.
Although there is the
theoretical possibility of class action copyright litigation against educational
institutions in Canada, that is probably unlikely. Attempts along these lines
in the USA in the Georgia State litigation have been by and large a legal and
public relations disaster for the plaintiff publishers, led by no less than
Cambridge University Press.
However, the post-secondary
and K-12 sectors must plan and budget for the inevitable lobbying efforts of AC
directed especially towards certain Ministers
from Quebec, since any mention of copyright, culture and “telling our stories”
is a regarded by some as a sure vote-getter in that province.
It will be very interesting
to see what governments do regarding their own dealings with Access Copyright. The
tariff for provincial governments was actually very low at the end of the day,
although Ontario bears the embarrassment of having settled at an absurdly high
cost in hindsight. There is no tariff for the Federal Government. Maybe it can
finally move on from its sweetheart approach to AC that helped to launch it in
the first place more than 30 years ago – and be more responsible for taxpayers’
money and the real encouragement of innovation.
Conclusion
Interventions can
count. Although one can debate whether the Court should be hearing so many
interventions but only allowing five minutes each for oral argument, the result
is that most who have anything to say will be heard. It takes a long time to
prepare a short five-minute argument – but one can be confident that it will be
heard attentively.
At the risk of
shameless self-promotion, it seems clear that our intervention on behalf of
CARL along with that of Ariel Katz and particularly his two landmark Spectre papers
were very influential and maybe even more determinative in this case than the
submissions of the main parties.
Here
are some convenient links:
Here’s
the Supreme Court’s Cases in Brief summary:
https://scc-csc.gc.ca/case-dossier/cb/2021/39222-eng.aspx
Here’s
the full decision:
https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18972/index.do
The
oral arguments are here. https://scc-csc.gc.ca/case-dossier/info/webcastview-webdiffusionvue-eng.aspx?cas=39222&id=2021/2021-05-21--39222&date=2021-05-21
CARL’s
argument is at 3:37:56.
Here’s the link to all the factums:
https://scc-csc.gc.ca/case-dossier/info/af-ma-eng.aspx?cas=39222
Here's CARL's Press Release:
https://www.carl-abrc.ca/news/reaction-supreme-court-decision-on-york-case/
HPK
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