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than those purposes specifically identified in the Agreement, includingby filing the Additional Materials with the Copyright Board or otherwise publishing or relying on same.5.In reasons dated February 4, 2014, the Honourable Mr. Justice Marangerdismissedthe U of T’s motion.While MarangerJ. found that the U of T had not established the basis for an interlocutory injunction, he noted that it nonetheless had a “valid argument” that the Agreement prevented Access Copyright from using the Additional Materialsin the manner that they are attempting before the Board.
C.Access Copyright’s application is in breach of the Agreement
i.The Licence Agreement and the Amending Agreement
6.On January 30, 2012, the parties entered into the Licence Agreementand the Amending Agreement. The Licence Agreement was effective as of January 1, 2011and had the effect of removing the U of T from the Proposed Tariff regime.Among other things, the Agreement provided the U of T withthe ability to continue using works in the Access Copyright repertoireat rates lower than those set out in the Proposed Tariff.This purpose and the parties’ intentionsin entering into the Agreement,were clear on the face of the Agreement. The preamble of the Licence Agreement provided, among other things, that “[t]he parties wish to enter into an agreement, instead of relying on the tariff, that facilitates access and distribution of copyright-protected works and respects academic freedom and privacy….”7.The provision of the Survey Data, described above, was subject to specific limitations. Specifically, section 11 of theLicence Agreementprovided as follows. Access Copyright and the Licensee shall establish a joint taskforce ...to develop a mutually agreeable survey methodology and/or reporting structure for the provision of valid and reliable bibliographic and volume data to Access Copyright
for distributionpurposes and to be used as a measure of volume to assess the appropriateness of the Royalties for any extension term
... [Emphasis added.]8.The Licence Agreement also containedan “entire agreement”clause, specifying that there wereno representations, covenants or other terms other than those set forth in the Licence Agreement, and that the Licence Agreement may only be amended only in writing. 9.For its part, the Amending Agreementexplicitly confirmed Access Copyright’s agreement that the U of T shouldnot have to participate in the Proposed Tariff proceeding, including by providing information about its copying activities. Specifically, the relevant provision of the Amending Agreement provided as follows:Further,
Access Copyright agrees to support theposition,
if taken by U of T in the context of [the Proposed Tariff proceeding],
that, in view of the settlement of the tariff as between Access Copyright and U of T,U of T should not be required to
respond to interrogatories,
participate in surveys,