The Access Copyright v York University Decision: Restoring Some Balance to Copyright in Canada

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The decision issued by the Federal Court of Canada on July 12 regarding the dispute between the copyright collective Access Copyright and one of Canada’s largest universities, York University (Toronto), marks an important step in swinging the pendulum of copyright back into greater balance. While the Canadian Association of University Teachers (CAUT) called the ruling “a setback for balanced copyright”, the decision is in fact just the opposite. It is a common sense judgment based on concrete evidence that restores the definition of “fairness” with respect to unlicenced copying by post-secondary educational institutions in Canada.

While copyright critic Michael Geist has called for the decision to be appealed because, according to him, it ignores previous Supreme Court of Canada (SCC) rulings on copyright, it would be refreshing if York and the Canadian educational establishment did the “right thing” for once. This would mean ceasing to continue to fight this issue through the courts, and accepting a regime that provides wide access to copyrighted materials for a reasonable payment, in the process helping to maintain the integrity of the Canadian educational publishing market and the livelihoods of authors and those working in the publishing industry. It remains to be seen if York, and the academic umbrella group, Association of Universities and Colleges of Canada (AUCC) will take this responsible approach. Let’s hope so.

The dispute goes back to 2010 when, after its licence with Access Copyright (AC) expired, York could not come to agreement with AC on a new licence. As a result AC applied to the Copyright Board of Canada for an interim tariff, which was duly established. York paid fees under this tariff for a number of months before deciding, in 2011, to “opt out” and cease any payments. Instead it developed, with assistance from AUCC, a set of “Fair Dealing Guidelines” which I discussed in an earlier blog on this issue last year. (These involved specifying the amount of allowed copying, such as 10% of work, one chapter of a book, one article in a journal etc.) These actions led directly to the lawsuit by AC against York.

York then launched a countersuit seeking to legitimize its actions as falling within the “fair dealing” exceptions in the Copyright Act. Access Copyright prevailed on both counts. The Court found that the interim tariff was mandatory and not discretionary and that therefore York was unable to “opt out”. It was directed to pay the royalties specified in the approved tariffs and AC was allowed to apply for an injunction prohibiting York from reproducing all copyrighted works protected by the tariff until such time as all amounts of royalties plus interest are paid. More important, it rejected York`s contention that its actions fell within the four corners of fair dealing and therefore no licence was required. The reasoning rejecting York`s claims is instructive.

The Court extensively examined the six factors set out by the SCC as being determinative of fair dealing and found that York`s Fair Dealing Guidelines were anything but fair. While York`s claim that the copying was for purposes of education, an exemption established after the fact by the introduction of the Copyright Modernization Act in 2012 was not disputed, the judge made the point that the amount of copying, the quality and quantity of the material selected, the arbitrariness of the guidelines, York`s unwillingness to enforce its own guidelines and the negative material economic impact on the publishing industry were all factors contributing to a finding of unfairness. A few excerpts from the judgment serve to underline clearly the rationale for the decision;

(Para 14) “York`s own Fair Dealing Guidelines (Guidelines) are not fair in either their terms or their application”

(Para 20) “The fact that the Guidelines could allow for copying of up to 100% of the work of a particular author, so long as the copying was divided up between courses, indicates that the Guidelines are arbitrary and are not soundly based in principle”

(Para 25) “It is almost axiomatic that allowing universities to copy for free that which they previously paid for would have a direct and adverse effect on writers and publishers”

(Paras 28 and 245) “The complete abrogation of any meaningful effort to ensure compliance with the Guidelines—as if the Guidelines put copyright compliance on autopilot—underscores the unfairness…York`s approach to these copyright infringing actions is consistent with its wilfully blind approach to ensuring compliance copyright obligations, whether under the Interim Tariff or under the Fair Dealing Guidelines”

(Para 272) “It is evident that York created the Guidelines and operated under them primarily obtain for free that which they had previously paid for”.

(Para 306) “there was no rationale advanced for any threshold such as the selection of 10% of a work or of one of anything else specified”.

Well, that is pretty clear. What happens now?

First, we will have to see if York appeals the decision. I have already indicated that it would be best to move on, accept the responsibilities that come with running a major educational institution and work out a modus vivendi with Access Copyright. That should then extend to other universities in Canada who have been hiding behind the York case. In 2015 AUCC let its previous licence with Access Copyright lapse and currently only 11% of Full Time Equivalent (FTE) students at Canadian post-secondary institutions are covered by an AC licence, as opposed to 70% under the AUCC’s 2012-15 licence.

This decision should also have an impact on the Copibec v Laval University case in Quebec where the Quebec collective has brought a class action suit against Quebec’s oldest and most prestigious university in a similar case (but involving copyright infringement rather than violating the terms of a tariff). See my commentary on this case here.

The Federal Court decision clearly indicated in its final paragraph that it was issuing the judgment now, prior to the French translation becoming available, in order for the parties to plan for the coming academic year, which in the case of York begins on September 1. Having been rebuked by the Court, and having no doubt spent a considerable sum on legal fees, York should now accept that the pendulum of copyright has been reset in a fair balance between the needs and rights of users and creators, and settle on a reasonable and workable licence arrangement with Access Copyright. That is the right thing to do and would be an excellent example for the AUCC and the rest of Canada’s post-secondary institutions to follow.

© Hugh Stephens 2017. All Rights Reserved.

 

 

Jonathan Taplin’s “Move Fast and Break Things”: A Sombre Warning—And a Call for Action

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Jonathan Taplin’s new book Move Fast and Break Things, published in April of this year, (the title is based on Facebook’s internal motto, since modified to make the company appear more responsible) has been attracting considerable attention as he embarks on the usual book launch media tour, in this case Down Under in Australia and New Zealand, and in the UK. Taplin’s core message is enshrined in the subtitle to the book, “How Facebook, Google and Amazon Cornered Culture and Undermined Democracy”. Those are pretty bold statements but Taplin, currently Director Emeritus of the Annenberg Innovation Lab at USC, builds a compelling case. He has a long and varied history in the entertainment business and can speak from experience, having been variously a manager of prominent bands in the 1960s (he was for a while full time tour manager for The Band), a film producer (his best known film is perhaps The Last Waltz), an investment banker working for Merrill Lynch, an entrepreneur who started an early video on demand service, Intertainer, that was arguably ahead of its time, and a writer and thinker on media and digital issues. Continue reading “Jonathan Taplin’s “Move Fast and Break Things”: A Sombre Warning—And a Call for Action”

The Supreme Court of Canada’s De-Indexing Decision: Does it Widen or Constrain Google’s Power?

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In my previous blog on the Supreme Court of Canada’s (SCC) decision requiring Google to de-index from its global search the website of a company (Datalinks Gateways) that had been found by the BC Supreme Court to be infringing the intellectual property of another BC company, Equustek Solutions, I commented that the decision was a victory for both the rule of law and for common sense. The Court dismissed Google’s appeal of the earlier BC decision on a number of grounds, including rejection of the argument put forward by a number of intervenors supporting Google who claimed that a world-wide de-indexing order would interfere with freedom of expression on the internet. The Court explicitly rejected that argument, reasoning that reasonable enforcement of intellectual property laws and freedom of expression on the internet are two different issues. Continue reading “The Supreme Court of Canada’s De-Indexing Decision: Does it Widen or Constrain Google’s Power?”

The Supreme Court of Canada and Google: A Victory for Common Sense

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It wasn’t a great week for Google. First on June 27 the EU antitrust regulators fined Google a whopping 2.42 billion Euros ($2.7 billion USD) for engaging in anti-competitive and unfair behaviour by favouring its own shopping sites over third parties through its search platform, and gave it 90 days to alter its practices or face further penalties. Then a day later the Supreme Court of Canada (SCC) upheld a provincial Court of Appeal decision requiring Google to de-index the website of a company (Datalink Gateways) that had been accused of infringing the intellectual property and trade secrets of a competing company (Equustek Solutions), based in British Columbia. That in itself would not be unusual. What was ground-breaking was that the SCC upheld the BC Appeal Court’s decision to require that the de-indexing have world-wide application, on all of Google’s search engines, not just within Canada on Google.ca. Continue reading “The Supreme Court of Canada and Google: A Victory for Common Sense”

Copyright, Folklore and Traditional Native Culture

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I recently came back from a wonderful vacation with my wife in New Mexico. This is a spectacular part of the US for art lovers, as well as for those interested in nature and history. Santa Fe seems to have more art museums than gas stations, ranging from the Georgia O’Keeffe Museum to the New Mexico Museum of Art, the Museum of Indian Arts and Culture, the Wheelwright Museum of the American Indian, the Institute of American Indian Arts and many others. There are private galleries galore, and many native vendors selling art. The art scene, which first achieved prominence in the 1920’s, extends to other centres as well, such as Taos, Abiqiui, and a number of native “pueblos”. (If this sounds like an unsolicited plug for New Mexico as a place to visit, it is). Continue reading “Copyright, Folklore and Traditional Native Culture”

Girl Guides of Canada Oppose Copyright Term Extension! What Next?

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Who among us has not purchased the ubiquitous Girl Guide cookies (aka Girl Scout cookies in the USA), available outside a supermarket or in a mall of your choice every spring. Even if you are not a fan of this particular version of the oreo cookie, one takes satisfaction from knowing that the money is going to a good cause. The Girl Guides (or Girl Scouts) is a great organization, dedicated–according to the website of the Girl Guides of Canada (GGC)–to making a “positive difference in the life of every girl and woman who experiences Guiding so she can contribute responsibly to her communities.” Its mission is to enable girls “to be confident, resourceful and courageous, and to make a difference in the world”. These are laudable goals, and one would expect that money provided to the Guides through cookie sales or direct donation would go directly to support programs for girls. Thus it was with some degree of surprise that I learned that at least some of the money raised goes for political causes that are not exactly central to Guiding, such as lobbying the Parliament of Canada to oppose any extension to the term of copyright protection. Continue reading “Girl Guides of Canada Oppose Copyright Term Extension! What Next?”

YouTube and the Music Value Gap

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Canadian musician, songwriter, boutique record label owner and music festival organizer  Miranda Mulholland made quite a splash with her cri de coeur address to the Economic Club of Canada in late May about the challenges facing performers in today’s digital world. Kate Taylor, entertainment columnist for the Globe and Mail who moderated the Economic Club event, in her article “What happens when we starve our artists”, strongly sympathized with Mulholland’s argument that musicians are being shortchanged by the digital distribution model. Mulholland took particular aim at YouTube; Continue reading “YouTube and the Music Value Gap”