Last week the Supreme Court of Canada (SCC) agreed to hear the appeal of the Federal Court of Appeal’s (FCA) decision in the ongoing saga of York University v Access Copyright. Back in April, the FCA overturned the established order in the Canadian copyright world by ruling that what had always been understood to be “mandatory tariffs” (i.e. fees established by the Copyright Board of Canada that were applicable to all unlicensed users of any content that was licensed on behalf of its members by a copyright collective) were, in fact, not mandatory at all. Mandatory tariffs were a long-established way of dealing with the “free rider” problem. While legal clarity is always desirable, the Court’s decision to grant leave to appeal should not rule out some urgently needed legislative fixes to Canada’s creaky copyright framework, both on this topic and on fair dealing in education.
At the same time as it issued its mandatory tariff decision, the FCA also upheld a lower court ruling that the Fair Dealing Guidelines used by York University to guide its students and teachers in the use of unlicensed material–guidelines based on those produced by Universities Canada for its members–were not fair in either their terms or application. Both parties appealed to the SCC, Access Copyright on the mandatory tariff question and York on the fair dealing issue. The Supreme Court declines to hear the majority of cases appealed to it, so its acceptance of these appeals may signal that it wants to add some much-needed clarity to Canadian jurisprudence in this area.
But here’s the problem. Now that the SCC has agreed to take on the case, it may be a very long time before a decision is reached. The issues are complex and the Court’s docket is charged, a situation made all the worse by the COVID-19 pandemic. In the meantime, the uncertainty caused by the FCA’s unusual decision on mandatory tariffs threatens one of the fundamental cornerstones of copyright and the business model of collective management organizations. Collective licensing was established as a way of avoiding endless and costly litigation. One of the reasons why collective societies exist is to provide the strength of a collective entity to negotiate licences with users on behalf of individual authors and publishers, but also to provide a mechanism for licensing that avoids the need for litigation, thus serving both rights-holders and users. This has all now been upended.
While a Supreme Court decision overturning the FCA’s mandatory tariff ruling would be one way to restore balance, the slow pace at which the case is likely to proceed will prolong the financial and legal uncertainty hanging over copyright industries. The case could drag on for years, and of course there is no way of knowing how the SCC will eventually rule. As I noted in a blog last month, “Undoing the Damage of the Federal Court of Appeal’s Decision on ‘Mandatory Tariffs’”, a much more expeditious solution would be for Parliament to clarify its intent through minor amendments to the Copyright Act. However, amending the Act is not something done every day–the last major revisions were in 2012 when “education” was added to the list of fair dealing purposes, in retrospect an ill-advised move that helped to precipitate the present lawsuit.
With a government preoccupied with responding to the health and economic challenges of the COVID-19 pandemic, copyright reform may not seem to be a priority. Nonetheless there are a couple of compelling reasons to re-open the copyright file. The first is a process issue: Canada’s commitments in the recently concluded CUSMA Agreement (aka the new NAFTA) require it to extend its term of copyright protection by twenty years. This process must be completed no later than December 31, 2022. The second is concern, as expressed in the recent Speech from the Throne (SFT), that content providers in Canada are being given short shrift by the major international internet platforms. The SFT stated, in part, that;
“Web giants are taking Canadians’ money while imposing their own priorities. Things must change, and will change. The Government will act to ensure their revenue is shared more fairly with our creators and media…”
Copyright is not the only way to address this issue, but it is one way, and from his public comments it appears likely that Heritage Minister Steven Guilbeault will be developing legislative options to tackle the problem. (It is worth noting, however, that Heritage is not the Ministry with final responsibility for the Copyright Act. That falls to the Ministry of Innovation, Science and Industry).
Just the same, the door is open to reviewing the Copyright Act. This review could clarify uncertainties regarding the status of mandatory tariffs even as the SCC examines the issue, and it could also clean up some of the mess arising from the 2012 Copyright Act revisions such as the uncertainty that has been created as to what “education fair dealing” actually covers. Educational authorities and institutions have used this “exemption” to try to drive a truck through any protection that copyright provides authors and publishers for use of their works in the context of education. It is one thing for students to be given access to limited portions of published works without payment as part of their studies; it is quite another to have major educational institutions and ministries refuse to license content for course packs and other teaching materials simply because they think the new exemption gives them carte blanche to take whatever content they want, in virtually unlimited quantities, all in the name of “education.” Saving money on educational materials is good for the institutions’ bottom line, but why should authors be subsidizing this sector?
There are reasonable solutions available, such as limiting fair dealing uses for private study and educational purposes to materials that are not commercially available. This would give students and educational institutions broad access but preserve the ability of authors and publishers to recoup some return from the use of their content within the important educational sector. Clarifying the fair dealing exceptions would help eliminate the seemingly endless litigation that was a major outcome of the 2012 copyright amendments and is another important role that Parliament could play in bringing forward legislation.
The COVID-19 pandemic has further reinforced the need for action by Parliament to fix some of the broken elements in Canada’s copyright laws. As I noted in a recent op-ed in the Globe and Mail, the pandemic has exacerbated the challenges that creators face in terms of presenting their work and talents to audiences and, equally important, earning a living. As it responds to the challenges brought about by COVID-19, Parliament has an opportunity over the next year to get copyright “right”. Legislative amendments are needed to restore a balance to copyright where creators—musicians, authors, artists, and other genres—are incentivized and rewarded for creating the cultural fabric so necessary to our quality of life, especially at a time of increasing isolation and lock-downs.
The Supreme Court will in time provide some direction on the legal issues surrounding fair dealing and mandated copyright tariffs, but Canada’s creative industries cannot afford to wait, particularly in the face of the current economic shutdown brought about by the pandemic. Legislation to fix the anomalies in Canada’s copyright laws is needed–and is needed now. The necessary impetus and political will to deal with copyright issues does not come around often and is unlikely to be repeated anytime soon. The current window of opportunity should not be missed. If anything, the SCC’s granting of leave to hear the York University v Access Copyright appeals strengthens the argument for Parliament to deal with these issues in the short term, providing needed guidance to the Court and clarifying Parliament’s intent.
© Hugh Stephens 2020