A copy of Access Copyright’s Statement of Claim against York University can be found here. It was filed in Federal Court on April 8, 2013 (see Court Docket). It is important to note that Access Copyright is not suing York merely because York is operating outside the Interim Tariff and outside of any licence with the collective. Rather, the allegation is that York educators reproduced copyrighted works that are within Access Copyright’s repertoire, and that this reproduction is not fair dealing. This reproduction causes York to be subject to the Interim Tariff, and obliges them to pay all royalties associated with the tariff.
The first part of the Statement (“The Plaintiff claims:”) is a list setting out exactly what Access Copyright would like from the court and from York University:
a) a declaration that York (and the people who comprise it) reproduced copyrighted material in Access Copyright’s repertoire, causing them to fall under the Interim Tariff; York, therefore, should pay royalties from September 1, 2011, as per the tariff;
b) payment of the royalties;
c) an injunction preventing further reproduction of such works, and preventing the distribution of the copies, until the royalties have been paid;
d) an order that York preserve records of reproduction and distribution of the works in question;
e) an order that the proceeding be dealt with as a specially managed proceeding [this would give the judge more of an active role and more discretion to see that the case proceeds quickly and fairly];
f) pre-judgment interest on royalties;
g) post-judgment interest;
h) the costs that Access Copyright has incurred in bringing the action, and;
i) “such other and further relief as this Honourable Court deems just” [this is a standard item in all such lists]
Paragraphs 1-6 describe Access Copyright and how it works, while paragraph 7 is a description of York University. Paragraph 8 recounts previous dealings between the two organizations.
Paragraphs 9-14 discuss Access Copyright’s application for a tariff under the Copyright Act and the Interim Tariff that was approved for the meantime by the Copyright Board. It notes that “The Approved Tariff does not obligate any person to pay royalties to the plaintiff unless that person is making or authorizing the making of non-exempted reproductions of copyright-protected works within the Repertoire.” (para. 13) It relates that York represented that it was not making copies that would fall under the scope of the Interim Tariff (para. 14).
In paragraphs 15-21, the Statement includes the allegation that named persons under the control (authority) of York made certain unauthorized copies (detailed in Schedule B) with the intention of distribution. Other unauthorized copies may turn up during discovery (the pre-hearing process of obtaining evidence from the other party). Access Copyright also claims that the burden is on the defendant to show, on a balance of probabilities, that these acts of reproduction fall within one of the statutory exemptions provided in the Copyright Act (para. 21). Put another way: if York wants to claim that these copies are, for example, fair dealing, it is up to them to prove it.
Paragraphs 22-25 specifically address York’s Fair Dealing Guidelines (included as Schedule C). The guidelines, according to the Statement, are “arbitrary and purely mathematical” and thus encourage educators and students to make reproductions beyond that which is encompassed by fair dealing.
Paragraph 26 states that since the action has arisen in Ontario, the laws of that province will apply in the matter of pre- and post-judgment interest. In paragraph 27, Access Copyright requests to be compensated for all out-of-pocket costs incurred in the proceedings. In paragraph 28, Access Copyright proposes that the proceeding take place in Toronto.