York University’s Statement of Defence

York University has filed its Statement of Defence in response to Access Copyright’s Statement of Claim that York owes royalties under the Interim Tariff. The document is in fact both a statement of defence and a counterclaim against Access Copyright.

The defence

York puts forth the following in its defence:

  1. The Interim Tariff is voluntary, and therefore they are permitted to operate outside of it. York opted out of it as of August 31, 2011, and gave notice of this to Access Copyright on July 4, 2011. Furthermore, York did not authorize anyone else (such as employees or students) to make copies that would attract royalties under the tariff.
  2. There is no basis in the Copyright Act for a claim to be made under the Interim Tariff. Section 68.2(1) provides that collective societies may collect royalties specified in an approved tariff, or recover royalties via the courts. York maintains that the Interim Tariff is not an “approved tariff” for the purposes of this provision. Furthermore, this section does not apply to institutions who have opted out of the tariff. Section 66.7(2) provides that a decision of the Copyright Board may be enforced by an order of the Federal Court. York asserts that the Interim Tariff is not a “decision of the Copyright Board” for the purposes of this provision.
  3. York argues that it (along with its employees) is complying with the Copyright Act. The university pays publishers in order to acquire and use works, and obtains copyright clearances when necessary. Reproduction for course packs is cleared directly with rights holders, or handled by third party copy shops that already pay royalties to Access Copyright.
  4. York has implemented fair dealing guidelines based on the model policy developed by the Association of Universities and Colleges of Canada. The university provides training and guidance in copyright compliance and fair dealing to its employees.
  5. York states that the reproduction at issue does not fall within the scope of the Interim Tariff for the following reasons: it was of works in the public domain; it was otherwise licensed; it was fair dealing; it is covered by the exceptions in section 3 of the Interim Tariff; it was of works that are not in Access Copyright’s repertoire; it was not done by York nor authorized by York.
  6. In the alternative, to the extent that there may have been acts of reproduction that do not fall within the scope of York’s fair dealing guidelines (which they deny), fair dealing may still apply, and in any case the acts were not done by York or any of its employees or students, or were not authorized by York.

York maintains that Access Copyright is attempting to force the university (or its students) to pay twice for the same copying. It requests that the lawsuit be dismissed with costs.

The counterclaim

York also seeks declaratory relief (a formal statement by the court) that the Interim Tariff is voluntary; that the Interim Tariff only applies to acts and not authorization of acts, and; that any reproduction that falls within the scope of York’s fair dealing guidelines constitutes fair dealing as per the Copyright Act. The counterclaim also seeks costs and “such further and other relief as [the court] may [d]eem just.”

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