On July 31 York University announced that it would appeal the Federal Court decision that had handed the university a legal rebuff and stern reprimand over its appropriation, without payment, of content from the repertoire of copyright collective Access Copyright. As I noted in an earlier blog, the Federal Court’s decision was a welcome restoration of some balance to copyright in Canada. Now York has appealed. This is unfortunate and a further waste of public funds. The university should have accepted the judgment, revised its procedures, and focussed on the business of educating students with material that respects authors through payment of fair compensation.
To recap, six years after the saga began, on July 12 Mr. Justice Michael Phelan of the Federal Court of Canada issued his verdict in the long-running Access Copyright v York University case. At issue was York’s unilateral decision to “opt-out” of an interim tariff certified by the Copyright Board of Canada that required York, along with other universities under the umbrella of Universities Canada (formerly known as the Association of Universities and Colleges of Canada–AUCC), to pay royalties for the right to reproduce in “course packs” copyrighted material produced by authors and publishers represented by Access Copyright. Instead York produced its own “Fair Dealing Guidelines” in which it set out what it considered to be the appropriate legal use of such materials by its staff, and copy shops with which it contracts. York also countersued to have these guidelines declared legal.
Fair dealing is of course an integral part of copyright legislation that allows users limited use of copyrighted material without payment for specified purposes. Among these purposes, since the new Copyright Modernization Act was implemented in Canada in 2012, is “education”. Private study and research are among other fair dealing exceptions. While legislation allows free use of copyrighted material (material produced and owned by others) for these and other specified purposes, there are other tests that are also applicable, such as the amount, character, fairness, nature of the use and alternatives to the dealing. In meeting these tests, York’s Guidelines failed miserably. The judge in the case stated clearly “York`s own Fair Dealing Guidelines are not fair in either their terms or their application”. In his view, “It is evident that York created the Guidelines and operated under them primarily to obtain for free that which they had previously paid for”. That is the nub of the issue. York’s guidelines have been found wanting, and now York is pursuing further litigation to get out of its dilemma.
As the Access/York case ground on, most Canadian universities under the umbrella of Universities Canada dropped their licence arrangements with Access Copyright to the point that today only about 10% of students in Canadian post-secondary institutions are covered by Access licences. In other words, most Canadian universities have been hiding behind the York case, hoping York would win. Now, that pretext has been stripped away.
The situation is similar in Quebec where Copibec, the copyright collective for that province, is suing Quebec’s premier francophone post-secondary institution, Laval University, though a class action suit, for $4 million for copyright infringement. Laval’s refusal to negotiate a licence is similar to that of York, with Laval taking the position that “limited” use of copyrighted materials—with the limitations being arbitrarily and unilaterally defined–constitutes fair dealing. (The main difference between the York and Laval cases is that no tariff has been certified in the case of Laval, which explains the necessity for a class action suit).
As I wrote back in March of this year, it is important that the courts provide guidance on the fair dealing guidelines that Universities Canada has adopted because, with the universities having unilaterally declared that a rough 10% usage rule is “fair”, we are already seeing university librarians and copyright officers pushing to expand those limits. There is nothing magic about a 10% rule—or any of the other self-described fair dealing criteria produced by York and Universities Canada through their Fair Dealing Guidelines—guidelines which the Federal Court has now clearly ruled are far from fair.
York, and Universities Canada, were handed a clear verdict. Instead of launching a costly and prolonged appeal to the Federal Court of Appeal or even to the Supreme Court, they should instead have done the “right thing” and reached a reasonable and workable licence arrangement with Access Copyright. This would mean ceasing 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 others working in the publishing industry. Unfortunately York, no doubt encouraged by Universities Canada, has opted to prolong the litigation and divert further financial resources to legal fees instead of compensating those who create the materials on which the university relies to teach its students and to run its business.
It is discouraging to see public institutions take this position. Hopefully the courts will quickly and definitively settle this issue once and for all, and Canadian universities can get back to their prime responsibility—educating students using legal, licenced materials instead of trying to cut corners and free-ride on the backs of creators and rights holders.
© Hugh Stephens, 2017. All Rights Reserved.