Two weeks ago, Justice Phelan of the Federal Court handed Access Copyright a huge victory in its lawsuit against York University.^[1] I have followed the case closely and read the parties’ submissions and I have been constantly concerned that York risked snatching defeat from the jaws of victory. Unfortunately, this is what happened. The good news is that many of the Court’s fundamental findings rest on very loose foundations, that I am confident that York’s loss is only temporary, and that if York appeals the decision and handles the appeal appropriately, most, if not all, of the Court’s major findings will be reversed. One way or another, and possibly with interveners assisting the court, one hopes that all essential arguments will be made on appeal. Therefore, this post provides an anatomy of York’s predictable yet totally avoidable loss. Read more ›

Earlier today, Australia’s Productivity Commission released its long-awaited Inquiry Report on Intellectual Property Arrangements. The Productivity Commission was set up by statute to provide the Australian Government independent research and advisory body on a range of economic, social and environmental issues, in order to help governments make better policies, in the long term interest of the Australian community.

The lengthy report and its recommendations should be of interest to many readers of this blog. With respect to copyright, one of the Commission’s main areas of study was whether Australia should adopt an open and flexible fair use regime and abandon its currently restrictive fair dealing approach. The Commission strongly recommends that it does. Of particular interest is the Commission’s analysis (and emphatic rebuttal) of the various claims made by copyright holders’ groups on the allegedly devastating impact of the recent developments in Canadian copyright law on Canadian authors and publishers. Read more ›