In my first post on the Access Copyright suit against Staples/The Business Depot, I noted that I had not seen the statement of claim and therefore could not comment fully on the case. I have now seen the claim and remain puzzled that Access Copyright is bringing this lawsuit. From a legal perspective, it looks like an almost sure loser – the Supreme Court of Canada ruled on many of these same issues only three years ago and sided strongly against the publishers (who in this case are effectively represented by Access Copyright).
Access Copyright claims that there is both direct and authorized copyright infringement and that it needs both injunctive relief (it would like to shut down Staples/The Business Depot photocopying business) and punitive damages to account for the fact that "the actions of Business Depot have been high-handed, reckless and in blatant disregard of the copyright interests of Access Copyright." So how, according to Access Copyright, has Staples/The Business Depot infringed copyright?
The direct infringement claims include that Business Depot makes full coursepacks available for sale, that it retains "master copies" for copying, that it will reproduce substantial portions of works, and that it "posts signs or notices and orally informs members of the public that copyright works may be reproduced using Business Depot's photocopying equipment." This last claim is rather ridiculous since the Supreme Court is clear that Staples/The Business Depot is entitled to presume that such copying will be lawful (on the issue of self-service copiers, the court stated "a person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright. Courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law"). As for the remaining claims, even reproducing substantial portions of works may be fair dealing under the right circumstances.
The authorization claims stand on even shakier ground. Access Copyright claims that Staples/The Business Depot has:
- adopted a policy of authorizing its customers to use self-serve photocopiers to make infringing reproductions of the works
- located certain of its stores in close proximity to colleges and universities in Canada
- directed members of the public to use self-serve photocopiers even though it knows or should know that the reproductions will be infringing
- had employees direct customers to self-serve photocopiers where they believe making the copies themselves would be infringing
- trained employees to direct customers to use self-serve photocopiers to make infringing reproductions
- posted signs or notices in close proximity to its self-serve photocopiers that encourage or acknowledge the ability of the public to make infringing reproductions
- taken no steps to ensure that the reproductions are being made for non-infringing uses
- not supervised the reproduction on its self-serve photocopiers
There are a couple of additional claims, but this is exceptionally weak. Indeed, some of the claims cut against Access Copyright. For example, close proximity to schools obviously is not a copyright-infringing activity, but it does increase the likelihood that the copying will qualify as fair dealing since it is more likely to be for research or private study purposes. Moreover, posting notices and not supervising the photocopying is completely consistent with the Supreme Court of Canada's CCH decision.
Last year, Access Copyright blew thousands of dollars (much of which comes from Canadian educational institutions) on its ill-advised Captain Copyright campaign. Now it seems determined to spend even more on legal fees in what must be viewed as a longshot lawsuit. In this case, Access Copyright will need some very damaging evidence, because the law is pretty clearly not on their side.