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, Universities Canada–previously known as the 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 the licence between Access Copyright (AC) and the post-secondary sector expired, the two parties could not come to an agreement 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 topic last year. (These involved specifying the amount of allowed copying, such as 10% of a 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 by claiming they fell within the “fair dealing” exceptions in the Copyright Act. In the Federal Court decision, 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 (to be set by a second phase of the trial) 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, the Court 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 found 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 with 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 to 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. At the end of 2015 a large number of post-secondary institutions chose not to renew their licence with Access Copyright and currently only 11% of Full Time Equivalent (FTE) students at Canadian post-secondary institutions are covered by an AC 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 not only the right thing to do but would be an excellent example for Universities Canada and the rest of Canada’s post-secondary institutions to follow.
© Hugh Stephens 2017. All Rights Reserved.
Updated July 22, 2017 (Original post published July 17)