Court File No.

A-259-17

FEDERAL COURT OF APPEAL

B E T W E E N:

YORK UNIVERSITY

Appellant

- and -

THE CANADIAN COPYRIGHT LICENSING AGENCY

(“ACCESS COPYRIGHT”)

Respondent

NOTICE OF MOTION BY PROPOSED INTERVENER

CANADIAN ASSOCIATION OF RESEARCH LIBRARIES

(Motion in Writing to Intervene – Rules 109 and 369)

To: And to:

OSLER, HOSKIN & Arthur B. Renaud
HARCOURT LLP Barrister & Solicitor
100 King Street West 40 Rivercrest Road
1 First Canadian Place Toronto, ON M6H 4H3
Suite 6200, P.O. Box 50 TeI: 647.984.1049
Toronto, ON M5X 1B8 a.b.renaud@gmail.com
attn. John C. Cotter ADDRESS FOR
Tel: 416.862.5662 SERVICE:
Fax: 416.862.6666 Access Copyright
jcotter@osler.com 320-56 Wellesley St. W.
Solicitors for Appellant Toronto, ON M5S 2S3
Solicitor for the
Respondent
 NOTICE OF MOTION

(Motion in Writing to Intervene – Rules 109 and 369)

TAKE NOTICE that the proposed intervener, Canadian Association of Research Libraries
(hereinafter “CARL”) makes a motion to this Honourable Court in writing under Rule 369 of the
Federal Courts Rules.

THE MOTION IS FOR:

1. An Order under Rule 109(1) granting CARL leave to intervene in the present appeal, to file a
memorandum of fact and law of up to 30 pages, and to make oral submissions at the hearing
of up to 30 minutes.

THE GROUNDS FOR THE MOTION ARE:

I. About the Appeal

2. This is an appeal by York University of the July 12, 2017 decision of the Federal Court in
Canadian Copyright Licensing Agency v. York University, 2017 FC 669 (the “trial
decision”) and Canadian Copyright Licensing Agency v. York University, 2017 FC 670 (the
“trial judgment”). Canadian Copyright Licensing Agency is hereinafter referred to as
“Access Copyright” and York University is hereinafter referred to as “York”.

3. According to York’s Memorandum of Fact and Law filed February 2, 2018, York is asking
this Court to determine that the trial judge erred in law by:

(a) concluding that copying done by York in compliance with its fair dealing guidelines is
not fair dealing;

(b) determining that the “interim tariff” is an “approved tariff” within the meaning of s.
68.2(1) of the Act, and that it is enforceable against anyone who has not agreed to be
bound by it; and
 (c) failing to apply the principles of procedural fairness when he rendered judgment in
the trial of the Phase I of a bifurcated proceeding on matters outside the scope of Phase
I.

II. About the Proposed Intervener – CARL

4. CARL has 31 members and represents research libraries in 29 of Canada’s most research-
intensive universities and two federal departments. Research libraries and professional
librarians are at the front line of all aspects of copyright in their institutions and have a
unique and indispensable perspective to bring to this court with respect to all aspects of fair
dealing.

5. CARL’s position is that the trial decision contained serious errors. In particular, CARL
would, if granted leave to intervene, argue that:

a. First, the learned trial Judge made a fundamental legal error in holding that tariffs,
such as those proposed by Access Copyright, whether interim or final, are mandatory
for users. This was a threshold issue that had not been fully and forcefully addressed
by York at trial. Had this issue been correctly decided and preferably at an early
stage, this litigation, which is only the first of two planned phases, could have ended
much earlier. This litigation was based upon the Interim Tariff imposed by the
Copyright Board on December 23, 2010 in a proceeding that has still not resulted in a
final approved tariff or a decision. A correct decision would also have prevented
much potential future litigation, some of which has recently been commenced.

b. Second, CARL will submit that the Court below need not have and should not have
dealt with the issue of infringement and fair dealing, because Access Copyright,
which lacks standing to sue for copyright infringement, cannot ask the Court to make
findings on any alleged infringement by institutions such as York. CARL believes
that the learned trial Judge’s findings on infringement and fair dealing, which should
not have been made, are seriously erroneous, particularly with respect to the need for
monitoring and supervision as well as aggregate copying, and in any event, are
merely obiter dicta.
6. The so-called “mandatory tariff” theory holds that a collective management organization
(“CMO”), such as Access Copyright, can ask the Copyright Board to approve a licensing
scheme and then impose it on users. If correct, such users then have no choice other than to
deal with the collective, and must, as a matter of law, pay the entire specified royalties if they
make even a single unauthorized use of a single work from the collective CMO’s repertoire.
If correct, this would upend the legislative scheme. CARL submits that this theory lacks any
basis in law. Standard principles of statutory interpretation contradict it. The legislative
history discredits it. The case law debunks it, including most notably the 2015 Supreme
Court of Canada (“SCC”) decision in which the Court held that that “licences fixed by the
Board do not have mandatory binding force over a user.”1 CARL submits that this SCC
decision is fully applicable to the current case.

7. By the logic of the trial decision, an infringing use of even one single work could result in the
payment of millions of dollars for any sizable institution. Such consequences go far beyond
any scenario in which an institution might be properly sued for copyright infringement by
actual copyright owners or any remedy contemplated by Parliament. In addition to absurd
results that contradict fundamental tenets of the rule of law, the “mandatory tariff” theory
threatens to upset the balance in Canadian copyright law.

8. As demonstrated in this Motion Record, CARL’s motion satisfies all criteria of this
Honourable Court for leave to intervene. CARL wishes to emphasize that it believes that its
position on the following issues in particular will not be adequately defended in this appeal
unless CARL is granted leave to intervene:

a. The threshold issue of whether “approved” tariffs set by the Copyright Board are
mandatory, which was not fully and forcefully addressed by York at trial;

b. The issue of York’s fair dealing guidelines, which did not need to have been and
should not have been addressed by the trial Judge, notwithstanding that both parties
agreed that this should be done;

1
Canadian Broadcasting Corp. v. SODRAC 2003 Inc., [2015] 3 SCR 615, 2015 SCC 57 para
113., [MMR, Tab 3D].
 c. The incorrect rulings regarding fair dealing, particularly with respect to monitoring
and supervision and aggregate copying, and the fact that those incorrect rulings are at
most obiter dicta because these findings are, in effect, findings about copyright
infringement, and could only be regarded as precedent in proceedings where the issue
of infringement is properly before the Court.

9. Not only would CARL make arguments that are different from those of other parties, it
would also bring libraries and librarians’ unique perspective, reflecting libraries’ expertise,
professional and ethical obligations, and their unique institutional role in the advancement of
learning.

10. Above all, CARL seeks leave to intervene because it believes that, unless reversed, the trial
decision will prove to be the single most incorrect and harmful decision in the history of
copyright law in Canada. It will effectively undo all three SCC decisions on fair dealing since
2004, the SCC decision from 2015 holding that Copyright Board tariffs are not mandatory
for users, and the explicit addition by Parliament in 2012 of the word “education” to the
purposes set forth in s 29 of the Copyright Act. At stake are not only supposedly mandatory
payments of hundreds of millions of dollars in potential retroactive, current and future
liability that Parliament never intended; unless reversed, the trial decision will also cause
incalculable damaging and chilling effects on all aspects to teaching, learning and research in
Canadian universities and research-oriented institutions

III. Legislative Provisions Relied On

11. Copyright Act, R.S.C. 1985, c. C-42, as amended

12. Rules 109 and 369 of the Federal Courts Rules

IV. The Following Documentary Evidence is Relied On:

13. The Affidavit of Victoria Owen sworn March 6, 2018.

DATED AT OTTAWA, March 8th, 2018

____________________________
MACERA & JARZYNA LLP
1200-427 Laurier Avenue West
Ottawa, Ontario K1P 7YS
Howard P. Knopf (LSUC #19578F)
Tel: (613) 238-8173
Fax: (613) 235-2508
howard.knopf@macerajarzna.com
Solicitors for CARL
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