Howard Knopf has reported that the Access Copyright v. York University suit has been bifurcated by the Federal Court — that is, split into two phases that will be heard separately. He has posted Aalto CMJ’s bifurcation order here. The order was requested by York.
In the first phase, documentary and oral discovery (the gathering of evidence) will take place with respect to York’s use (or authorization of use) of the copyrighted works enumerated in Schedule “B” of Access Copyright’s Statement of Claim, as well as York’s counterclaim seeking a declaration that the proposed tariff is voluntary and that uses of copyrighted works that fall within the scope of their Fair Dealing Guidelines are fair dealing.
In the second phase, if necessary, the Court will consider Access Copyright’s claims related to other acts of reproduction that York may have engaged in or authorized, and which are not set out in Schedule “B” but may be discovered during the course of the proceedings.
Access Copyright argued against the bifurcation, on the grounds that it will cause prejudice to their attempts to show that York’s Fair Dealing Guidelines do not reflect the legal scope of fair dealing, and that York has engaged in or authorized copying that falls outside of the ambit of the guidelines. They contend that the initial focusing on the 87 enumerated works will interfere with their ability to discover copying that has taken place beyond what has already been alleged.
Aalto CMJ’s bifurcation order attempts a compromise between York’s view that there are far too many instances of fair copying to be considered in one proceeding, and AC’s view that its ability to discover further copying is compromised. To that end, York will be required to produce the volume and types of copying that it tracks, and provide samples of the copying.