John Degen is Executive Director of the Writers’ Union of Canada. I don’t know Mr. Degen nor have I ever met him but I do know that he is a passionate defender of the interests of authors, as well as being a successful published novelist and poet himself. Recently Mr. Degen published a very long, almost “stream of consciousness” Twitter broadside, commenting on the recent decision of the Supreme Court of Canada (SCC) on the Access Copyright v York University cross-appeal. It was visceral, raw, personal, bitter (although leavened with some humour)….and fully understandable. While I take issue with certain aspects of what Mr. Degen said, especially his attacks on the credibility of the Court, one has to look at the context. His comments reflect a deep frustration with the system, born of a sense of betrayal. I think he reflects the views of many writers. However, both the problem and the solution lie not with the Supreme Court, but with the Parliament of Canada.
Before I get to Mr. Degen’s long Twitter post, a bit of background is necessary for the non-cognoscenti amongst you. The Supreme Court’s decision, outlined in all its legal intricacies by lawyer Barry Sookman (“Certified Tariffs not Mandatory Says SCC in York v Access Copyright”), has undermined the collective licencing system that has prevailed in Canada for the past quarter century by upholding the Federal Court of Appeal’s (FCA) earlier decision that “mandatory” tariffs (royalty fees) for reproducing copyrighted materials, certified by the Copyright Board of Canada after extensive hearings, are not mandatory with respect to users. According to the FCA’s ruling, mandatory tariffs apply only to providers of copyrighted content and require them to provide access to the material covered by the tariff at a rate set by the Copyright Board. As I commented at the time “When is a ‘Mandatory Copyright Tariff’ Mandatory Only if you Opt-in?”, the FCA’s ruling demolished a major pillar of the collective licensing system in Canada. That decision has now been upheld by the highest court in the land.
To add insult to injury, while dismissing the appeal by the Canadian Copyright Licensing Agency (Access Copyright) against the FCA’s decision on mandatory tariffs, the Supreme Court then opined (negatively) on the FCA’s finding that York University’s Fair Dealing Guidelines were not fair and had facilitated infringement. At the same time, however, the SCC declined to reverse the FCA’s decision by declaring the Guidelines fair. York had argued fair dealing as a defence against Access Copyright’s initial infringement lawsuit and had offered its Fair Dealing Guidelines as proof. York had cross-appealed to the SCC the FCA’s decision that found the Guidelines to be unfair. Whether the Guidelines are fair or not remains undecided and may have to be further tested though litigation.
The reason given by the Supreme Court for declining to rule on whether York’s Guidelines were fair in the context of fair dealing was essentially technical, namely that since the tariff to be paid for copying was optional rather than mandatory, there was no longer a valid dispute between the university and Access Copyright. This flows from the fact that the collective is not a rights-holder, but rather a collective established to collect licensing fees and thus, according to the Court, it has no status to represent rights-holders in an infringement action. The structure of collective licensing in Canada is largely based on a system whereby rights-holders (e.g. publishers and authors) come together to form an organization that has two basic functions; (1) to facilitate the licensing of content by users and (2) to collect and distribute licensing fees to rights-holders. This avoids the necessity of users having to track down hundreds of individual rights-holders to clear (i.e. license) material and is a cost-effective means for authors to collect and receive revenues for uses of their work. In most instances, certainly in the case of Access Copyright, the collective society does not itself hold any rights but rather represents rights-holders.
This structure served both users and rights-holders well until recent years when some users, particularly post-secondary educational institutions of which York became the poster-child, decided they would no longer seek licences from Access Copyright. Instead, they chose to rely on fair dealing exceptions in the Act (education was added as an exception in Copyright Act revisions in 2012 although the decision to refuse to obtain licences preceded this change). In other cases, the universities undertook direct negotiations with some individual rights-holders. This refusal to obtain an Access Copyright licence came at a heavy financial cost to the institutions in the form of additional staff time and legal fees, as I noted in a recent blog (“Throwing Good Money After Bad: How Canadian Universities Wasted Millions by Not Securing a Copyright Licence”). It would have been so much simpler, and avoided so much litigation, to have simply obtained a licence, paying authors a reasonable sum for use of their work.
For many years tariffs (an annual cost per student—generally around $15 per student per year) were set by the Copyright Board if agreement could not be reached between the collective and users (educational institutions). The expectation and understanding was that if a university accessed material in the collective’s repertoire after the Copyright Board had fixed a tariff, the institution would be subject to that tariff unless fair dealing could be established. For reasons related primarily to shortcomings in the language of Copyright Act amendments enacted in the 1980s and late 1990s, the SCC has now determined that the mandatory nature of the Copyright Board tariffs was not established in law. Instead, the Court reverted back to a 1930s interpretation whereby the mandatory nature of the tariff fell on the collective rather than the user. That is to say, if a user offers to acquire a licence, it is mandatory on the collective to issue it at the rate determined by the Copyright Board. That may be what the jurisprudence and the language of the law suggests; whether such an interpretation is just or even sensible is another question entirely. Jurisprudence and justice are not always the same. That is why it is incumbent on Parliament to fix what the SCC has broken; the collective licensing system for copyrighted materials in Canada.
What does Mr. Degen have to say about all of this? I called his thirty-one tweet posting over 3 days a “broadside” which seemed to be the best and most balanced description although it had some of the characteristics of a “rant”, in the sense that he “spoke at length in an impassioned way” (one definition I found). But rant can also have a negative connotation so I didn’t call it a “rant”. I thought about “diatribe” (“a forceful and bitter attack”), but this also has pejorative air to it. It had elements of a “harangue”, implying strong feelings, but still a bit negative. In a sense it had elements of all these descriptions, but this is not surprising given deep frustration with a system that seems to be stacked against creators. So let’s call it a “broadside”.
Degen aimed his guns squarely at the Court’s credibility, arguing that the decision damaged its reputation and “sorely tested” his trust in the Canadian justice system. Degen is bothered by the fact that the Court reached its decision in record time (40 days—“perhaps the speediest SCC decision on record”) and the fact that it was written by retiring Justice Rosalie Abella, whose husband is a former professor at York. While not endorsing the suggestion that she should have recused herself, he repeats it. While he does not say there is a conflict of interest, he emphasizes that one has to avoid the appearance of a conflict. He mentions that the Court did not rehearse much of the testimony filed by groups supporting Access Copyright and describes the decision as having been made on a “technicality” and being “unbalanced”. He even notes hearing that some unnamed legal professionals have described the decision (off the record) as “embarrassing” and “ridiculous”. That’s a lot of criticism to throw at the Court. But let’s not forget the inconvenient fact that Justice Abella’s decision and analysis was joined by the other eight Supreme Court justices. It was a unanimous decision. The reality is that the Court cannot create the law; it can only interpret what legislation says and if mandatory tariffs on users do not fall within the four corners of the law, the Court cannot stretch the law’s footprint.
Mr. Degen is also upset with the academy, particularly with University of Ottawa professor Michael Geist, a longtime copyright skeptic. Degen points out the discrepancy between Geist’s rising salary (yes, it has increased over 15 years, which is not surprising) and the economic plight of authors. He hints that the alacrity with which Geist tweeted out and commented on the SCC decision may have been due to inside knowledge regarding its content. But Geist is a prolific if annoying commentator and watches this stuff like a hawk. It doesn’t surprise me that he focused on putting his spin on the interpretation of the decision as quickly as possible, with an initial tweet just 3 minutes after the decision was released followed by others shortly after. Other members of the academy, such as Ariel Katz of the University of Toronto Faculty of Law are largely responsible for the Supreme Court’s finding on mandatory tariffs. Katz researched the issue extensively, and published articles critical of York’s legal defence team when they initially did not adopt his arguments. Katz’s work was referenced by the SCC in reaching its decision. Law professors in ivory towers have the time to research this sort of thing which involved parsing legislation going back to the 1930s. But hey, why shoot the messengers? If the law is deficient, don’t blame those who interpret it. Fix the law.
To resolve issues where there is an anomaly between the letter of the law and legislative intent, action by the legislative arm is the bottom line. In the Allen v Cooper copyright infringement case in the US, the Supreme Court of the United States (SCOTUS) openly invited Congress to correct legislative deficiencies that allow US state governments to thumb their nose at copyright law and to copy with impunity. The SCOTUS ruled 9-0 that 1990s Congressional legislation failed to override US state sovereign immunity with respect to copyright infringements, but noted that this conclusion;
“need not prevent Congress from passing a valid copyright abrogation law in the future. In doing so, Congress would presumably approach the issue differently than when it passed the (original legislation)….Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection. But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. “
It was a clear road map for legislative action to remedy what the Court could not do because its hands were tied by the wording of the law. The need for Congress to take action has been reinforced by a study from the US Copyright Office (USCO) that held public hearings and examined the extent of state infringement and abuse of copyright. It’s report, just released, concluded that “infringement by state entities is an issue worthy of congressional action”. It would be nice to see USCO’s Canadian counterpart, the Canadian Intellectual Property Office (CIPO), take such a independent view on the mandatory tariff issue but the USCO, as an entity of the Library of Congress, has far more independence than CIPO.
In any event, similar to the comments of the US Supreme Court with regard to the role of the legislative branch, the SCC noted (at para 76) that “It is of course open to Parliament to amend the Copyright Act if and when it sees fit to make collective infringement actions more readily available. But under the existing relevant legislation in this appeal, an approved tariff is not binding against a user who does not accept a licence.”
This is, in fact, where John Degen ends up his Twitterspiel. “Parliament cannot let this profoundly damaging Supreme Court ruling be the last word”, he concludes. I agree. Focus on the legislative solution.
The message I am trying to convey (with no disrespect to Mr. Degen) is that one has to be very careful in casting doubt on the credibility of the Supreme Court no matter how disappointed one is at the outcome of a case. After all, the day will inevitably come when the SCC makes a ruling on some issue that favours creators and rights-holders, and in that instance it will be seen as all-wise and all-knowing. So let’s give the SCC the benefit of the doubt and accept that it has interpreted the law as it exists. The ball is now back in Parliament’s court and if the government of the day (we will know who that will be on or shortly after September 20, given the current general election) wants to maintain the proven system of collective licensing for the benefit of both users and rights-holders, it is going to have to introduce legislative amendments to address the Supreme Court’s legally-correct but socially and economically unjust decision.
© Hugh Stephens, 2021. All Rights Reserved.