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 …

Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss Read more »

When lawyers say that hard cases make bad law, they usually mean that extreme or unusual circumstances provide poor basis for making legal rule that would have to be applicable to a wider range of more common cases. Sometimes the phrase describes cases that involve a party whose hardship draws sympathy even if its legal case is weak. But sometime hard cases can make good law, when they present smart judges with difficult dilemmas and force them to think hard and deep on their ruling and its broader consequences. Yet courts don’t always choose the cases that come before them …

Google v. Equustek: Unnecessarily Hard Cases Make Unnecessarily Bad Law 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 …

Productivity Commission: Tales of the Widespread Demise of Canadian Publishers are Just That Read more »