Court File N0.

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

WRITTEN REPRESENTATIONS OF CANADIAN ASSOCIATION OF RESEARCH

LIBRARIES RE MOTION FOR LEAVE TO INTERVENE – RULES 109 & 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 Tel: 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
Contents

Overview .......................................................................................................................................................... - 1 -
Part I – FACTS ................................................................................................................................................ - 4 -
About CARL ................................................................................................................................................ - 7 -
PART II: POINTS IN ISSUE .......................................................................................................................... - 7 -
PART III – SUBMISSIONS ............................................................................................................................ - 8 -
Motion in Writing ........................................................................................................................................ - 8 -
The Test for Intervention ............................................................................................................................. - 8 -
The Rothmans Factors ............................................................................................................................... - 10 -
(1) Is the proposed intervenor directly affected by the outcome? .......................................................... - 10 -
(2) Does there exist a justiciable issue and a veritable public interest? ................................................. - 15 -
(3) Is there an apparent lack of any other reasonable or efficient means to submit the question to the
Court?..................................................................................................................................................... - 16 -
(4) Is the position of the proposed intervenor adequately defended by one of the parties to the case? . - 17 -
(5) Are the interests of justice better served by the intervention of the proposed third party? .............. - 20 -
(6) Can the Court hear and decide the cause on its merits without the proposed intervenor? ............... - 21 -
PART IV: ORDER SOUGHT ....................................................................................................................... - 22 -
PART V: LIST OF AUTHORITIES ............................................................................................................. - 24 -
 -1-

Overview

1. This is a motion in writing by the Canadian Association of Research Libraries (hereinafter

“CARL”) for leave to intervene pursuant in the pending appeal of the July 12, 2017 decision of
the Federal Court in Canadian Copyright Licensing Agency v. York University, 2017 FC 669
(CanLII), http://canlii.ca/t/h4s071 (the “trial decision”) and Canadian Copyright Licensing
Agency v. York University, 2017 FC 670 (CanLII), http://canlii.ca/t/h54mj2 (the “trial judgment”).
Canadian Copyright Licensing Agency is hereinafter referred to as “Access Copyright” and York
University is hereinafter referred to as “York”.

2. CARL’s position is that the trial decision contained serious errors. In particular, CARL would
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 as will be shown below.

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.

1
Moving Party’s Motion Record (hereinafter “MMR”), Tab 3A.
2
[MMR, Tab 3B].
 -2-

3. CARL’s position on these issues is more particularly described in Victoria Owen’s Affidavit (the
“Owen Affidavit”) in support of this motion.3

4. CARL has 31 members and represents research libraries in 29 of Canada’s most research-
intensive universities and two federal departments.4 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. 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 decision in which the
Court held that that “licences fixed by the Board do not have mandatory binding force over a
user.”5 CARL submits that this Supreme Court decision is fully applicable to the current case.

6. 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.

7. As demonstrated below, 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

3
Affidavit of Victoria Owen sworn March 6, 2018 (hereinafter “Owen Affidavit”), paras. 4 – 7
[MMR, Tab 2].
4
Owen Affidavit, para. 11 [MMR Tab 2].
5
Canadian Broadcasting Corp. v. SODRAC 2003 Inc., [2015] 3 SCR 615, 2015 SCC 57 para 113.,
[MMR, Tab 3D].
 -3-

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;

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.

8. 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.

9. Above all, CARL seeks leave to intervene because it believes that:

Unless reversed, CARL believes that 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, a SCC decision of 2015 declaring
that Copyright Board tariffs are not mandatory for users, and Parliament’s explicit
recognition of “education” by the addition of that word to the s. 29 fair dealing provision
during the 2012 amendment to 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.6
(footnotes omitted)

6
Owen Affidavit, para 8 [MMR, Tab 2].
 -4-

Part I – FACTS

10. A brief history of this litigation is attached as Exhibit “B” to Ms. Owen’s Affidavit.7

11. This litigation was commenced on April 8, 2013.

12. Access Copyright did not bring action against York for copyright infringement. Rather, it claimed
that York is required to comply with the Interim Tariff purportedly imposed by the Copyright
Board on December 23, 2010. Access Copyright claimed that the Interim Tariff was mandatory
on York because York was responsible for the making of some infringing reproductions.

13. In Canadian Broadcasting Corp. v. SODRAC 2003 Inc.8 (hereinafter “CBC v. SODRAC”) the
Supreme Court held that “licences fixed by the Board do not have mandatory binding force over a
user.”9 As Rothstein, J., explained:

…the Board may decide upon a fair royalty to be paid should the user decide to engage in the
activity at issue under the terms of a licence. However, this power does not contain within it
the power to force these terms on a user who, having reviewed the terms, decided that
engaging in licensed copying is not the way to proceed. Of course, should the user then
engage in unauthorized copying regardless, it will remain liable for infringement. But it will
not be liable as a licensee unless it affirmatively assumes the benefits and burdens of the
licence.10

14. At trial, Access Copyright argued that the holding from CBC v. SODRAC, which concerned
proceedings under s. 70.2,11 did not apply to tariffs approved under s. 70.15. York did not
forcefully attempt to counter those arguments. Instead, York insisted that the only issue was
whether the Interim Tariff was mandatory and that it was “not necessary to dive into this bigger
question as to whether tariffs are generally enforceable or whether approved tariff is mandatory
or voluntary”.12 Moreover, York told the trial Judge that the holding from CBC v. SODRAC was
merely “instructive”.13

7
Owen Affidavit, Exhibit “B” [MMR, Tab 2B].
8
Canadian Broadcasting Corp. v. SODRAC 2003 Inc., [2015] 3 SCR 615, 2015 SCC 57, [MMR,
Tab 3D].
9
Ibid, para 113.
10
Ibid, at para 108.
11
[MMR, Tab 3A].
12
Owen Affidavit, para. 66 [MMR, Tab 2].
13
Owen Affidavit, paras. 7, 63, 67 [MMR, Tab 2].
 -5-

15. The trial Judge accepted Access Copyright’s un-countered position and held that “an approved
tariff is a form of subordinate legislation which is mandatory and binding on any person to whom
it pertains. There is no opting out.”14 He also dismissed York’s argument that the Interim Tariff
was not mandatory.15

16. The trial decision pertains to the Interim Tariff issued by the Copyright Board on December 23,
2010. The Board’s decision with respect to the approval of Access Copyright proposed tariff for
2011-2103, filed in 2010, consolidated with a subsequent proposed tariff for 2014-2017, is still
pending.16 Once the Board approves those tariffs, the potential retroactive application of the
mandatory tariff theory across the post-secondary sector could result in liability of hundreds of
millions of dollars.17

17. As stated by Ms. Owen in her affidavit:

If the trial decision is upheld with respect to its ruling that Copyright Board tariffs are
“mandatory” for users, the consequences for academic libraries, their parent institutions and
the public interest would be devastating. In the case of a university, for example, the
“mandatory tariff” theory would entail that, despite all efforts and expenditure to comply
with its copyright obligations without dealing with a monopolistic copyright collective, such
as Access Copyright (e.g. by obtaining licences directly from publishers or other market-
based intermediaries, relying on “open access” licensing models, and implementing internal
fair dealing policies), a single unauthorized reproduction of one work from a copyright
collective’s repertoire could nonetheless trigger retroactive and prospective liability of
millions dollars. In monetary terms alone, the conclusion that tariffs are mandatory could
potentially result in a cost to Canadian universities, of more than $44,000,000 per annum in
tariff payments, with potential retroactive application of several years amounting potentially
to hundreds of millions of dollars. (footnotes omitted)18 (emphasis added)

18. The mandatory tariff issue has been exhaustively analyzed by Prof. Ariel Katz of the University
of Toronto Faculty of Law in two important articles that were published in 2015,19 well before the

14
See also para. 218 of trial decision MMR [Tab 3A].
15
Trial Decision, para. 235 [MMR Tab 3A].
16
Owen Affidavit, Exhibit “B” [MMR, Tab 2].
17
Owen Affidavit, paras. 3, 38, 53 [MMR, Tab 2].
18
Owen Affidavit, para. 38 [MMR, Tab 2].
19
Ariel Katz, “Spectre: Canadian Copyright & the Mandatory Tariff - Part I” (2015) 27 IPJ 151
[MMR Tab 3M]; Ariel Katz, “Spectre: Canadian Copyright & the Mandatory Tariff - Part II” (2015)
28 IPJ 39 [MMR, Tab 3N].
 -6-

trial in this case. The first of these, Spectre I, was on the record in the SCC in the CBC v.
SODRAC case and was clearly influential in the outcome of that case. In explaining why tariffs
are not mandatory on users, this article specifically refers to the example of this litigation.20
Although the article was referred to briefly in closing oral argument at trial, neither it nor the
follow-up article Spectre II were included in the record below or were referred to in York’s
written closing arguments. In any event, these articles were not referred to in the trial decision.21

19. York made no attempt at any time to attack any aspect of the Access Copyright’s pleadings, or to
bifurcate or seek summary disposition with respect to the mandatory tariff issue.22

20. The hearing of this case took place before the Federal Court on May 16-19, 24-27, 30 and 31,
2016, June 1-3, 6-9 of 2016 with final arguments on June 22-24, 2016. The record filed for this
appeal comprises at least 75,000 pages of material.23 This is a massive record by any measure and
for any type of case in the Federal Court or this Court. Most of the record and most of the hearing
time were dedicated to Access Copyright’s claims that York infringed copyright and to York’s
claims that it did not. If the threshold issue of the mandatory tariff had been dealt with in a
summary manner at an early stage, virtually all of this record and the lengthy trial would have
been unnecessary.

21. York also did not contest Access Copyright standing to ask the Court to make findings on
copyright infringement, or otherwise objected to the Court’s power to make such findings at the
behest of a plaintiff who is not the owner of the copyright and does not have standing to bring
proceedings for the infringement of copyright.

22. York failed to argue that Access Copyright did not have standing to raise the issue of
infringement before the Court and to ask the Court to make any finding about infringement of
copyright by York. Nor did York argue that the trial Judge should not have heard arguments or
evidence as to whether any of the activity complained of was compliant with fair dealing
requirements because the issue of infringement was not properly before the Court. Moreover,

20
Ibid, at 160-62.
21
Owen Affidavit, para. 68 [MMR, Tab 2].
22
Owen Affidavit, para. 62 [MMR, Tab2].
23
Owen Affidavit, para. 81 [MMR, Tab2].
 -7-

York sought a declaration amounting to an advisory opinion that copying within its guidelines
would constitute fair dealing. In addition to taking up several weeks of the trial Court’s time and
obviously massive discovery and expert and survey evidence, the result is that there is now an
unnecessary and incorrect ruling that could affect many other institutions that use similar
guidelines.24

About CARL

23. As Ms. Owen details in her affidavit, CARL has relevant and useful experience with respect to
copyright issues generally and particularly how they affect research libraries at the university and
government level.25

24. CARL’s perspective, which is focused on the concerns of research libraries, is different than that
of York or of other potential interveners that may represent the management of universities and
colleges, teachers, and students.26 Research librarians are at the front line of copyright issues in
the post-secondary realm in Canada.27

PART II: POINTS IN ISSUE

25. The issue raised in this motion is whether and upon what terms CARL should be permitted to
intervene in York’s appeal with respect to such issues in this appeal as:

a. Whether the trial decision was wrong in holding that tariffs, such as those proposed by
Access Copyright, whether interim or final, are mandatory for users;

b. Whether the fair dealing issues generally and the York fair dealing guidelines in particular
were necessarily and properly before the Court at trial;

c. Whether, in any event, the trial decision was wrong with respect to its conclusions on fair
dealing, particularly with respect to monitoring and supervision and aggregate copying

24
Owen Affidavit, para. 75 [MMR, Tab2].
25
Owen Affidavit, para. 75 [MMR, Tab2].
26
Owen Affidavit, paras. 6, 17, 79 [MMR, Tab 2].
27
Owen Affidavit, paras. 28, 76 [MMR, Tab 2].
 -8-

and York’s guidelines, or whether, in any event, these conclusions should be characterized
as obiter dicta.

PART III – SUBMISSIONS

Motion in Writing

26. This is a motion in writing pursuant to Rules 109 and 369. It is the practice of this Honourable
Court to deal with motions for leave to intervene in writing.

The Test for Intervention

27. Rule 109(2)(b) requires a proposed intervener to “describe how the proposed intervener wishes to
participate in the proceeding and how that participation will assist the determination of a factual
or legal issue related to the proceeding.” These written representations and the detailed affidavit
of Victoria Owen clearly demonstrate that CARL meets the requirements and well-established
case law.

28. The overall test for when an intervention will be permitted consists of the six factors set forth in
Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 FC 74 (FCTD)28 aff’d
in Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 FC 90 (FCA) para.
329 and recently reiterated by this Court as the controlling test in Sport Maska Inc. v. Bauer
Hockey Corp., 2016 FCA 44 at paras 41, 42.30

29. In Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 FC 74 (FCTD), the
six classic “Rothmans factors” were set forth at paragraph 12 are as follows:

12 In order for the Court to grant standing and to justify the full participation of an
intervenor in a "public interest" debate, certain criteria must be met and gathering from the
more recent decisions the following is contemplated:
(1) Is the proposed intervenor directly affected by the outcome?

28
Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 74 (FCTD) [MMR,
Tab 3E].
29
Rothmans, Benson & Hedges Inc. v. Canada (Attorney General) [MMR, Tab 3F].
30
Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44 [MMR, Tab 3G].
 -9-

(2) Does there exist a justiciable issue and a veritable public interest?
(3) Is there an apparent lack of any other reasonable or efficient means to submit the question
to the Court?
(4) Is the position of the proposed intervenor adequately defended by one of the parties to the
case?
(5) Are the interests of justice better served by the intervention of the proposed third party?
(6) Can the Court hear and decide the cause on its merits without the proposed intervenor?
30. Although a proposed intervener need not necessarily satisfy each factor in order to be granted
leave31, it is submitted and will be demonstrated below that CARL clearly does so in this
instance.

31. CARL’s proposed intervention fits perfectly with this Court’s recent statement in Tsleil-Waututh
Nation v. Canada (Attorney General), 2017 FCA 102 (CanLII),32 that:

[49] Thus, successful moving parties for intervention often propose to work within the ambit
of the existing proceedings and the existing evidentiary record but propose to do something
different than the existing parties. For example, they propose to invoke a body of
jurisprudence that existing parties have not invoked, ask us to interpret certain jurisprudence
differently, or acquaint the Court with the larger implications associated with its ruling.
(emphasis added)
32. Consistent with recent caselaw from this Court,33 the affidavit of Ms. Owen demonstrates in great
detail that:

a. CARL has a genuine interest in the matter such that the Court can be assured that it has
the necessary knowledge, skills and resources and will dedicate them to the matter before
the Court;

b. It is compliant with the objectives set out in Rule 3 regarding “the just, most expeditious
and least expensive determination of every proceeding on its merits”, and the mandatory

31
Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 119, para.
5(c) [MMR, Tab 3H].
32
Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 102 [MMR, Tab 3I].
33
Prophet River First Nation v. Canada (Attorney General), 2016 FCA 120, para. 6 [MMR, Tab 3J].
See also Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21 paras. 10, 11
[MMR, 3P]
 - 10 -

requirements in Rule 109, including an explanation of how the intervener will assist the
Court in the issue before it.

33. Ms. Owen’s affidavit also makes clear that CARL is intervening at the earliest possible
opportunity34 after awaiting the opportunity to analyze the York Memorandum and the leave to
intervene motion of Universities Canada. CARL sees no need to await Access Copyright’s
memorandum, since it is very unlikely to contain anything that would obviate the need for CARL
to intervene.

34. Pursuant to Rule 109(2)(a), CARL states that:

a. Its full name and address is: Canadian Association of Research Libraries, 309 Cooper
Street, Suite 203, Ottawa, Ontario K2P 0G5; and,

b. It will be represented in this intervention, if leave granted, by Mr. Howard P. Knopf of

Macera & Jarzyna, LLP, Suite 1200, 427 Laurier Ave. W., Ottawa, Ontario, K1R 7Y2 and
Prof. Ariel Katz, Professor of Law, University of Toronto, Jackman Law Building, Room
J340, 78 Queen's Park, Toronto, Ontario M5S 2C5.

The Rothmans Factors

35. The six Rothmans factors are addressed as follows in order to demonstrate how CARL’s
proposed intervention will not only assist this Honourable Court but be indispensable in this
instance. The following analysis is abridged and adapted from the detailed content of Ms. Owen’s
Affidavit, pages 9 – 27, which Ms. Owen has in turn organized according to the Rothmans factors
in order to assist this Court.

(1) Is the proposed intervenor directly affected by the outcome?

36. CARL’s members will be directly affected by the outcome of this case. Professional librarians are
on the front line of copyright issues in the post-secondary education realm in Canada. Most
institutions delegate to their libraries and their staff copyright clearance matters, the explanation

34
Canada (Attorney General) v. Siemens Enterprises Communications Inc., 2011 FCA 250 (CanLII),
<http://canlii.ca/t/fn56j> para. 5 [MMR, Tab 3K].
 - 11 -

of copyright law, institutional guidelines and in many cases the responsibility to allow or deny
inclusion or provision of specific material. Librarians must respect the policies of their employer
and be cognizant of the applicable legislation and jurisprudence in assessing particular questions.
The personal reputation, professional responsibility and career prospects of CARL members’
librarians depend on properly serving their community. It is part of CARL’s role and that of its
members to contribute their expertise to the development of sound legislation and jurisprudence.
Moreover, CARL members will be prejudiced by onerous costs and reporting requirements,
decreased access to essential material and the resulting harm to research, education and
innovation. Faculty, staff and students in the post-secondary community in Canada will be
negatively affected if CARL is not permitted to assist this Court and have a voice in this appeal of
a decision that, unless reversed, will have a profoundly damaging effect on research, innovation,
and education in Canada.

37. The role of libraries and universities in the dissemination of knowledge is of immense historic
and present importance. Indeed,

Libraries and universities predate copyright. The institutional role of libraries and
institutions of higher learning in the “promotion of science” and the
“encouragement of learning” was acknowledged before legislators decided to
grant authors exclusive rights in their writings.35

38. It must not be overlooked that this case is very much about libraries. Indeed, even the trial
decision acknowledged the critical role that libraries play in the access to and dissemination of
educational materials:

[180] York’s libraries (York University Libraries and Osgoode Hall Law Library) play a
critical role in the access to and dissemination of educational materials, including hard copy
collections (printed monographs and periodicals) as well as electronic collections. Osgoode
Hall Law Library is not part of this litigation.36

35
Ariel Katz, Copyright, Exhaustion, and the Role of Libraries in the Ecosystem of Knowledge, I/S: A
JOURNAL OF LAW AND POLICY Vol. 13:1 (2016) [ MMR, Tab 3O].
36
[MMR, Tab 3B].
 - 12 -

39. Ms. Owen also describes Access Copyright’s role in the CCH v. LSUC37 case, which was directed
at the Great Library of the Law Society of Upper Canada, and how Access Copyright is now
trying to effectively undo the result of that landmark SCC decision,38 as well as the two other
subsequent SCC decisions that explicitly deal with users’ fair dealing rights.39

40. Universities have clearly recognized the link between libraries and copyright, and have, with the
help of their research libraries and staff, put in place a variety of mechanisms that help to ensure
copyright compliance at their institutions. As articulated in CARL’s Statement on Fair Dealing
and Copyright in Universities, the 31member libraries of the Canadian Association of Research
Libraries (CARL) spent $293 million on information resources in 2014-15, demonstrating a clear
commitment to accessing print and digital content legally and rewarding content owners
accordingly.40

41. If the trial decision is upheld with respect to its ruling that Copyright Board tariffs are
“mandatory” for users, the consequences for academic libraries, their parent institutions and the
public interest would be devastating. The “mandatory tariff” theory would entail that, despite an
institution’s efforts and expenditure to comply with its copyright obligations (e.g. by obtaining
licences directly from publishers or other market-based intermediaries, relying on “open access”
licensing models, and implementing internal fair dealing policies), a single unauthorized
reproduction of one work from a copyright collective’s repertoire could nonetheless trigger
retroactive and prospective liability of millions of dollars and force the institution to deal with a
monopolistic copyright collective, where more competitive alternatives exist. In monetary terms
alone, the conclusion that tariffs are mandatory could potentially impose on Canadian universities

37
CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 [MMR, Tab 3L].
38
Owen Affidavit, paras. 8,31-33, 81, MMR, Tab 2.
39
See Owen Affidavit, para. 8 [MMR, Tab2]; Society of Composers, Authors and Music Publishers
of Canada v Bell Canada, 2012 SCC 36, [2012] 2 SCR 326 [SOCAN] [MMR, Tab Q]; Alberta v
Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 SCR 345 [MMR.
Tab R]. The latter decision involved fair dealing in the K-12 educational context and was based upon
the law even before the 2012 amendment that added the word “education” to s. 29 of the Copyright
Act. See [MMR, Tab 3A]).
40
“CARL Statement on Fair Dealing and Copyright,” September 6, 2016, http://www.carl-
abrc.ca/wp-content/uploads/docs/CARL_Statement_on_Fair_Dealing_2016_EN.pdf See Owen
Affidavit, para. 37 [MMR, Tab 2].
 - 13 -

a cost of $44,000,000 per annum in gratuitous tariff payments,41 with potential retroactive
application of several years.42

42. This liability would compound the millions of dollars that universities already pay, and will
continue to pay, for acquisitions, subscriptions, and access to licensed digital databases. It might
exceed, by orders of magnitude, any monetary award that any institution, even if held liable for
infringement, could otherwise be reasonably expected to pay. It is noteworthy that in 2012
Parliament decided to cap statutory damages for “non-commercial” infringement at $5,000 for all
previous infringing activity.43

43. Ms. Owen describes the inevitable and unsustainable expense of participation in Copyright Board
proceedings if tariffs are held to be mandatory. As she also explains, Access Copyright does not
provide greater “access” but rather seeks to impose additional fees for content that has already
been paid for or for which permission is not needed because the copying constitutes fair
dealing.44

44. Moreover, if tariffs become mandatory for users, to stave off the magnitude of such liability,
users would be compelled to participate in tariff proceedings before the Copyright Board. The
financial and administrative costs of participating in such proceedings would be unsustainable, as
illustrated by the fact that the Association of Universities and Colleges Canada (“AUCC”, now
known as Universities Canada) withdrew in 2012 from the current and still unresolved hearing
that has been ongoing since 2010 after reportedly spending nearly two million dollars.45

45. Needless to say, the more an institution pays for the use of its existing content or for participating
in unnecessary Copyright Board proceedings, the less resources it has for acquiring additional
content to support research.46

41
Based upon estimated enrolment of 1.7 million students (https://www.univcan.ca/universities/facts-
and-stats/ ) and the final tariff currently sought by Access Copyright of $26 per FTE per annum in a
nearly 8-year-old but still undecided Copyright Board hearing.
https://www.univcan.ca/universities/facts-and-stats/ Owen Affidavit, para. 38 [MMR, Tab2].
42
Owen Affidavit, paras. 8, 38 [MMR, Tab 2].
43
Copyright Act, s 38.1(1)(b) [MMR Tab 3A].
44
Owen Affidavit, para. 41 [MMR Tab 2].
45
Owen Affidavit, para. 40 [MMR, Tab 2].
46
Owen Affidavit, para. 41 [MMR Tab 2].
 - 14 -

46. Ms. Owen states that what is at stake is much more than money. In the immediate aftermath of
the trial decision, some institutions purged all manner of important online information in an
exercise of apparently unwarranted but still unsurprising risk avoidance, based upon premature
and even incorrect reactions to the York decision. Still, such reaction can be expected in the
future if this decision is not reversed because the very possibility that the “mandatory tariff”
theory will be upheld has created enormous concern and understandable risk aversion.47

47. Moreover, the Interim Tariff and Access Copyright’s Proposed Tariff include various terms and
conditions, including those with respect to record keeping, reporting, attribution, surveying and
auditing and other administrative requirements that go to the core of how libraries carry on their
mission. The trial decision implies that the Copyright Board could, at the behest of a copyright
collective, promulgate a compulsory scheme for the regulation of libraries. CARL will submit
that Parliament could never have intended to give the Copyright Board and collectives such
powers, and that even if it did, such regulation of educational institutions and libraries might well
fall outside the permissible scope of Federal legislation.48

48. Furthermore, competitive and vibrant markets for works in digital form are thriving and growing,
to the benefit of authors, publishers, readers, students, scholars and Canadians as a whole. The
growth of such products and services has made Access Copyright’s licensing schemes less
appealing to educational institutions and has been one of the main reasons for many institutions’
decision not to renew their Access Copyright licences. Instead of finding ways to make its
services attractive, Access Copyright has instead sought to force users into a mandatory payment
mechanism through litigation.49

49. If tariffs such as the one in question become mandatory, the incentive to develop more efficient
and competitive business models for copyright clearance would be seriously diminished, because
users would be forced to deal with a monopolistic collective. Therefore, unless overturned by this

47
Owen Affidavit, para. 42 [MMR, Tab 2].
48
Owen Affidavit, para. 42 [MMR, Tab 2].
49
Owen Affidavit, para. 44 [MMR, Tab 2].
 - 15 -

Court, this novel “mandatory tariff” theory will create severe anti-competitive effects on those
markets without any redeeming value for Canadians.

(2) Does there exist a justiciable issue and a veritable public interest?

50. This appeal raises legal issues of utmost public interest. The decision of the Federal Court has
been widely criticized and is extremely controversial. As noted earlier, CARL believes that the
Court below made three serious errors: (1) it erred in its holding on the mandatory tariff issue; (b)
it erred when it decided to make findings on copyright infringement and the validity of York’s
fair dealing policy where the issue of copyright infringement was not and could not have been
properly before it; and (c) its rulings on the fair dealing issue, which need not have been made,
are inconsistent with all three of the fair dealing decisions of the Supreme Court of Canada since
2004 and with the 2012 explicit addition by Parliament of the word “education” to the purposes
set forth in s 29 of the Act.50

51. In its submissions, CARL will demonstrate the impact of these errors on the delicate balance
between the rights of copyright owners and those of users in general, and their particular harmful
effect on libraries, their patrons, on scholars, students, and research in Canada. CARL will show
why, unless reversed, the error of the trial decision will seriously undermine this balance, the
cornerstone of Canadian copyright jurisprudence, and render users’ rights effectively
meaningless.

52. The potential harm to the post-secondary educational sector in Canada of the trial decision in
terms of its capacity to foster research and innovation is clearly a matter of great public interest
and will affect every element of the public at large.51

53. The outcome of this case is not limited to the parties thereof. When Access Copyright filed its
lawsuit against York, it issued a media release emphasizing that the lawsuit is only one element in
a broader strategy aimed at forcing all institutions who decided not to obtain licences from
Access Copyright to do so.52 Moreover, Access Copyright itself acknowledged the wide-ranging

50
[MMR Tab 3A].
51
Owen Affidavit, para. 48 [MMR, Tab 2].
52
See Owen Affidavit, para. 49 [MMR, Tab 2].
 - 16 -

and important public interest aspect of this decision in a press release dated July 12, 2017 — the
day of the decision — when its President and CEO stated that:

“The Court struck the right balance between the public good that is education and the need
to reward creators to ensure that this public good continues to be well supported by quality
Canadian content. Up until today, the state of the law regarding fair dealing left creators
and the institutions that copyright protected works in a state of uncertainty.” said Roanie
Levy, CEO & President of Access Copyright. “This decision will help the parties understand
what can be done and paves the way to re-establish stability and royalties to creators.”53
(emphasis added)
54. Although CARL disagrees with Access Copyright that the Court below struck the right balance, it
shares its view about the public importance of the resolution of this case.

(3) Is there an apparent lack of any other reasonable or efficient means to submit the question
to the Court?

55. CARL believes that there is no other reasonable or efficient means to submit the question of
whether tariffs are mandatory to the Court. The question of whether s 68.2(1)54 indeed empowers
collectives to impose compliance with an approved tariff on a user can only be decided by “a
Court of competent jurisdiction” in an action to recover the royalties pursuant to that section. This
case is such an action. This issue was indeed decided by the Court below, and is currently before
this Honourable Court, where it must be dealt with because it is the fundamental and threshold
issue.

56. CARL notes that the Court below could have disposed of this case by accepting York’s narrow
technical argument that the Interim Tariff is not an approved tariff without deciding whether a
final approved tariff would be mandatory or not. Accepting this narrow argument could have
resolved the present dispute but it would not prevent the inevitable ensuing litigation concerning
whether final approved tariffs are mandatory. However, in rejecting York’s argument and holding
that the Interim Tariff is an approved tariff, the Court below proceeded to decide that an approved
tariff is mandatory. Accordingly, CARL believes that the option of settling this case on the
narrow issue of the Interim Tariff is no longer viable. Access Copyright’s case was predicated on

53
See Owen Affidavit, See Owen Affidavit, para. 49 [MMR, Tab 2].
54
[MMR, Tab 3A]
 - 17 -

the notion that an approved tariff is mandatory and the Court below accepted its position. Unless
reversed, the trial decision on this issue will become settled law in Canada.55

57. Indeed, in the course of preparing this motion for leave to intervene, CARL has just become
aware of a new Federal Court Action T-326-18 launched on February 16, 2018 by ministries of
education of ten Canadian provinces and territories (excluding British Columbia, Ontario and
Quebec) and each of the school boards in Ontario to recover almost $25.5 million in excess
payments to Access Copyright. A critical issue in that litigation will be whether Copyright Board
tariffs are mandatory.56 The province of British Columbia has also launched a similar action on
the same day, namely A-329-18. The uncertainty that is manifest in this new litigation and other
foreseeable litigation to follow would have been obviated had the issue of mandatory tariffs been
fully and forcefully confronted at trial and correctly resolved by the trial Judge. This Court now
can and should correct this fundamental error concerning the threshold issue in time to save
needless future litigation in this new case and others that doubtless will follow to enforce tariffs
in the post-secondary sector involving potentially hundreds of millions of dollars.

58. CARL also believes that this appeal provides the best opportunity to determine whether the Court
could and should have adjudicated the issues of infringement and fair dealing. This case began
nearly five years ago and the trial decision pertains only to Phase I, while Phase II has not yet
even begun. If this Court accepts CARL’s position that the issues of infringement and fair dealing
were not properly before the Court below, this would not only save considerable time and
resources in the present litigation but will also avoid wasting such resources in future
proceedings.57

(4) Is the position of the proposed intervenor adequately defended by one of the parties to the
case?

59. CARL believes that its position will not be adequately presented or defended by any of the parties
to the case or any other known or likely interveners. In CARL’s view, the main errors in the trial

55
Owen Affidavit, para. 52 [MMR, Tab 2].
56
See Owen Affidavit, para. 53 [MMR, Tab 2} and Statement of Claim in Owen Affidavit, attached
Exhibit “O” [MMR, Tab 2O] and, in particular, paragraphs (a), 31 and 33. Note that only the first of
the detailed calculations for the individual plaintiffs is included.
57
Owen Affidavit, para 53 [MMR, Tab 2].
 - 18 -

decision were in its ruling that the Interim Tariff is mandatory and that final approved tariffs are
also mandatory, and in the Court’s willingness to adjudicate the issues of infringement and fair
dealing.58

60. Access Copyright’s arguments at trial were predicated upon the proposition that approved tariffs
are mandatory (as are interim tariffs) and there is no reason to expect that Access Copyright
would argue otherwise on appeal. Likewise, Access Copyright asked the Court below to make
findings about copyright infringement and there is no reason to expect that it would argue on
appeal that the Court below should not have done that.

61. Like Access Copyright, York was interested in adjudicating the issues of infringing and fair
dealing before the trial Court, and did not change its mind on appeal. And while York challenges
the holding about the mandatory nature of tariffs on appeal, in CARL’s opinion, York’s argument
is incomplete, ambiguous, and clearly secondary to York’s concern with fair dealing. 59 As
documented in Ms. Owen’s affidavit, which includes quotations from the transcript of the closing
oral arguments below and Prof. Katz’ lengthy blog,60 it is clear that York repeatedly asserted
before the Federal Court that is was not necessary to address the issue of whether final approved
tariffs are mandatory. York’s attempt now to deal with the “mandatory tariff” issue notably
contrasts with its position at trial.

62. Moreover, York’s Notice of Appeal and its Statement of Issues in its Memorandum both focus
explicitly on whether the Interim Tariff is mandatory and not whether approved tariffs are
mandatory.61 Even if York had succeeded on its narrow argument about the Interim Tariff or
should do so in this Court on such a narrow basis, it would ring hollow for libraries, research and
educational institutions because the final approved tariff from the Copyright Board would still be
mandatory. Even now, the York Memorandum states,

58
Owen Affidavit, paras. 4 – 7 [MMR, Tab 2].
59
Owen Affidavit, paras. 7 57 [MMR, Tab 2]
60
Owen Affidavit, paras. 61 – 73 [MMR, Tab 2].
61
See York’s Notice of Appeal, Owen Affidavit, para. 58 [MMR, Tab 2] and Owen Affidavit Exhibit
“P” [MMR, Tab 2P] and York Memorandum of February 2, 2018 paras. 7() and 26(b) in Owen
Affidavit, Exhibit “A” [MMR, Tab 2A].
 - 19 -

a. in its overview at para. 7(b) that the judge erred in “determining that the ‘Interim
Tariff’ is an ‘approved tariff’ within the meaning of s. 68.2(1) of the Act62, and that it is
enforceable against anyone who has not agreed to be bound by it”; and,

b. as a main issue in para. 26(b) only that: “Did the trial judge err in concluding that the
Interim Tariff was mandatory, not voluntary, and enforceable against York?” and does
not refer in Part III of its Memorandum to “approved tariffs”.63 (emphasis and underline
added)

63. Thus, it is still not clear that York will fully, forcefully, and adequately address the overall
threshold issue of whether tariffs approved by the Copyright Board are mandatory, or would still
focus merely on whether the Interim Tariff is not mandatory. Moreover, York’s submissions on
the mandatory tariff issue comprise only about five of the 30 pages in the York Memorandum.

64. In any event, given its position at trial, CARL is not confident that York will adequately address
the mandatory tariff issue in particular in its oral argument, if indeed it addresses the issue at all.64

65. As confirmed by Ms. Owen’s affidavit,65 CARL agrees with the detailed analysis of Prof. Ariel
Katz, one of Canada’s leading copyright scholars, as to how York failed to fully address the
mandatory tariff issue and why it may have failed to do so. In his blog post analysis, published on
July 27, 2017 (shortly after the trial decision),66 Prof. Katz explained how in focusing on the
Interim Tariff and ignoring “the most important question in this case, namely whether tariffs
approved by the Copyright Board become mandatory on users” York “risked snatching defeat
from the jaws of victory”.67

62
[MMR, Tab 3A]
63
Owen Affidavit, para. 58 [MMR, Tab 2] and York Memorandum, Exhibit “A” of Owen Affidavit
[MMR Tab 2A].
64
Owen Affidavit, para. 60 [MMR Tab 2].
65
Owen Affidavit, para. 61 [MMR, Tab 2]
66
Ariel Katz, “Access Copyright v. York University: An Anatomy of a Predictable But Avoidable
Loss”, University of Toronto Faculty of Law Blog, July 27, 2017, at
https://www.law.utoronto.ca/blog/faculty/access-copyright-v-york-university-anatomy-predictable-
avoidable-loss. Owen Affidavit, Exhibit “Q” [MMR, Tab 2Q].
67
Ibid.
 - 20 -

66. While CARL sympathizes with the desire to increase the clarity of what constitutes fair dealing,
its members’ daily experiences in the trenches of copyright practice lead it to believe that
submitting any set of guidelines to a Court’s approval or disapproval in the present case is not the
most constructive or even proper way to accomplish that. Courts should not be asked for advisory
opinions.68 In any event, there are three very clear decisions from the SCC since 2004 and a
2012 amendment to the Copyright Act that state the law on fair dealing. CARL believes that this
Court will benefit from its ability to share its different perspective on this matter, which no other
party intends to address.

(5) Are the interests of justice better served by the intervention of the proposed third party?

67. CARL believes that the interests of justice will be better served by allowing its intervention in
this matter as neither of the parties and none of the other foreseeable potential interveners are
going to approach this case from the standpoint of research libraries and professional librarians –
who operate at the front line of copyright matters.69

68. CARL has waited until it could examine York’s Rule 346 Memorandum, which was filed on
February 2, 2018, and has filed this motion for leave to intervene as soon as possible thereafter.
With respect, CARL believes that York’s Memorandum:

a. Does not fully and forcefully address the paramount and threshold issue of whether approved
tariffs are mandatory. It does not address and seek to correct all the errors that the trial judge
made on this point and it fails to cite essential relevant and controlling case law and other
authorities, which CARL is ready to bring to this Court’s attention;

b. Does not address whether or not York’s fair dealing guidelines should have been before the
Court;

c. Does not argue that the trial decision regarding fair dealing should, at most, even to the extent
it may not be erroneous, be treated as obiter dicta;

68
Owen Affidavit, para. 75 [MMR, Tab 2].
69
Owen Affidavit, para. 76, [MMR, Tab 2].
 - 21 -

d. Omits considerable important jurisprudence, learned authority and legislative history that
would be of great assistance to this Court; and,

e. Fails to address the definition and interpretation of the word “tariff” and its legal
significance.70

69. Neither of the parties provided the Federal Court with all the essential jurisprudence and authority
required to adequately address such issues as the mandatory tariff issue or whether Access
Copyright had standing to pursue this litigation as it did. The York Memorandum still fails to do
so and Access Copyright’s memorandum cannot be expected to do so. CARL intends to fill this
gap.

70. CARL has also had the opportunity to examine the leave to intervene material filed by
Universities Canada on February 2, 2018. It is clear that its proposed intervention will deal with
different points in different ways and with a different perspective than CARL.71

71. CARL does not expect that anything in Access Copyright’s Rule 346 memorandum will diminish
the importance of its intervention.

(6) Can the Court hear and decide the cause on its merits without the proposed intervenor?

72. CARL believes that neither party in this appeal will provide this Court with all of the necessary
arguments, jurisprudence and authorities that the Court will need. They failed to do so in the
Federal Court, particularly with respect to the application of the SCC’s landmark ruling in CBC v.
SODRAC and other pertinent case law concerning so-called mandatory tariffs, and also with
respect to Access Copyright’s standing to conduct what was effectively a massive infringement
action with a record of more than 75,000 pages72 and whether there was any need or proper
jurisdiction for the Court to rule on York’s fair dealing guidelines. CARL will acquaint this
Honourable Court with the larger implications associated with the Federal Court’s ruling, namely
how it will undo constructive developments in the Supreme Court of Canada and Parliament

70
Owen Affidavit, para. 77 [MMR, Tab 2].
71
Owen Affidavit, para. 80 [MMR, Tab 2].
 - 22 -

since 2004 concerning fair dealing and the explicit addition of the word “education” to the “fair
dealing” provision of the Copyright Act, R.S.C. 1985, c. C-42 as amended, s. 29

73. CARL will address this issue from the unique perspective of libraries and their long established
institutional role in the advancement of learning.73

74. If permitted to intervene, CARL acknowledges its responsibility as an intervener. Ms. Owen has
stated on behalf of CARL that:

CARL will not introduce any new evidence or any new issues. All of the issues discussed in
this affidavit were before the Court at trial and are addressed, albeit very differently, in the
York Memorandum.
CARL’s proposed intervention will not prejudice any of the parties in this Appeal and will not
delay or adversely affect these proceedings in any respect. CARL will take the record as it
finds it and will not supplement the record. CARL will seek to avoid unnecessary duplication
of submissions, and will abide by any schedule set by the Court.74

PART IV: ORDER SOUGHT

75. CARL respectfully asks this Honourable Court to make an order as follows:

a. Granting leave to intervene to CARL;

b. Permitting CARL to file a memorandum of fact and law of up to 30 pages in length;

c. Permitting CARL to make oral submissions of up to 30 minutes;

d. That no costs be awarded against CARL for this motion, but that if this motion is
opposed, CARL may reserve its right to seek costs in accordance with Column III of
Tariff B;

e. Directing that CARL shall not otherwise seek or be liable for costs in this appeal;

f. For such further and other relief as this Honourable Court may deem just.

73
Owen Affidavit, paras. 81-82 {MMR, Tab 2]
74
Owen Affidavit, paras. 85, 86 [MMR, Tab 2]
 - 23 -

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 8th day of March, 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
 - 24 -

PART V: LIST OF AUTHORITIES

- Page # in Written Representations –

Statutes
Copyright Act, R.S.C. 1985, c. C-42 as amended, s. 29 .................................................................. - 22 -
Copyright Act, s 38.1(1)(b) .............................................................................................................. - 13 -

Cases
Alberta v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 .................... - 12 -
Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21 ..................................... - 9 -
Canada (Attorney General) v. Siemens Enterprises Communications Inc., 2011 FCA 250 ........... - 10 -
Canadian Broadcasting Corp. v. SODRAC 2003 Inc., [2015] 3 SCR 615, 2015 SCC 57 ....................... - 4 -
Canadian Copyright Licensing Agency v. York University, 2017 FC 669 ........................................ - 1 -
Canadian Copyright Licensing Agency v. York University, 2017 FC 670 ........................................ - 1 -
CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 .................................................... - 12 -
Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 119 ................................ - 9 -
Prophet River First Nation v. Canada (Attorney General), 2016 FCA 120 ..................................... - 9 -
Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 74 (FCTD) .......... - 8 -
Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 90 (FCA)............. - 8 -
Society of Composers Authors & Music Publishers of Canada v Bell Canada, 2012 SCC 36 ....... - 12 -
Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44................................................................... - 8 -
Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 102 ............................................... - 9 -

Other Authorities
Ariel Katz, “Spectre: Canadian Copyright & the Mandatory Tariff - Part I” (2015) 27 IPJ 151 ...... - 5 -
Ariel Katz, “Spectre: Canadian Copyright & the Mandatory Tariff - Part II” (2015) 28 IPJ 39 ....... - 5 -
Ariel Katz, Copyright, Exhaustion, and the Role of Libraries in the Ecosystem of Knowledge, I/S: A
JOURNAL OF LAW AND POLICY Vol. 13:1 (2016)............................................................... - 11 -