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Access Copyright lawsuit against York is first test of fair-dealing guidelines

The outcome of the case could have wide-reaching implications for Canada’s educational institutions.

By ROSANNA TAMBURRI | OCT 30 2013

A lawsuit launched by Access Copyright against York University will serve as the first legal test of new fair-dealing guidelines adopted by many universities, colleges and schools. The outcome of the case could have wide-reaching implications for Canada’s educational institutions as well as the copyright collective.

“I think it’s very significant,” said Gregory Juliano, general counsel for the University of Manitoba. “What’s really at the heart of the challenge is the meaning of fair dealing,” which he called “a big issue” not only for York but for all universities that have adopted similar fair dealing guidelines. “If York was wrong, everybody’s wrong.”

The stakes are equally high for Access Copyright. If the fair dealing guidelines are allowed to stand, this could change the way the copyright collective operates. “It really impacts the relevance of Access Copyright and its whole existence,” said Mr. Juliano.

The lawsuit was launched by Access Copyright this past April, about a year after the collective and the Association of Universities and Colleges of Canada reached an agreement on a new model licence that was supposed to put an end to a dispute over copyright fees paid for by universities to cover photocopying by their students and staff. But since then, amendments made to federal copyright legislation and a Supreme Court ruling have rekindled the issue and set the stage for the lawsuit. York is one of more than 20 Canadian universities that didn’t sign a licence based on the model licence.

Access Copyright is a non-profit organization that collects and distributes royalty fees on behalf of writers and publishers. It alleges in the lawsuit that York made copies of “a substantial part” of several copyright-protected works for which the university didn’t obtain appropriate clearance or pay the necessary royalties. It argues that the fair-dealing guidelines that York relied on, in part, to make the copies are “arbitrary” and too broad.

“Access Copyright and the authors and publishers it represents disagree with York’s fair-dealing guidelines,” said Roanie Levy, executive director of Access Copyright, in an email. “Put simply, both the copying supposedly permitted under the policy and the policy itself are unfair.” Ms. Levy said Access Copyright launched the lawsuit as a last resort. “We would have much preferred to focus solely on innovative ways to serve our partners in education.” The institutions without blanket licences “are invited to the table to talk,” she added.

Harriet Lewis, university secretary and general counsel at York, said the issue affects all levels of education. “My own view is that York is a convenient defendant” because it is in the same city as Access Copyright’s offices, she said. “I think what they really believe is that the AUCC fair dealing guidelines aren’t fair, and that is something that a court may eventually have to consider. We have been given the burden of defending the litigation.” Ms. Lewis said “expressions of support” from other universities, AUCC, students and library associations “make the burden somewhat lighter.”

AUCC believes the fair dealing guidelines are “justified and reasonable,” said Christine Tausig Ford, vice-president of AUCC. “This case is the first test of fair dealing in higher education, and is expected to set the ground rules for fair dealing at the university level in Canada.”

Ms. Tausig Ford said all universities have an interest in the case. AUCC’s board of directors has committed to funding 20 percent of York’s legal costs (up to a ceiling of $100,000). The association also wrote to all university presidents, asking them to provide a voluntary financial contribution to York’s legal fees in recognition of the impact of the case. Contributions have been “significant,” said Ms. Tausig Ford, and donations are still coming in from across Canada.

How fair dealing has changed

The fair dealing provisions of Canada’s Copyright Act permit the use of copyright-protected work without permission from the copyright owner or the payment of royalty fees if the material is used for research, private study, and other specified uses. In November 2012, legislative amendments to the act came into force that expanded the fair dealing exceptions to include education. Earlier in the year, the Supreme Court ruled that the fair dealing exception in the act allows teachers to make copies of short excerpts of copyrighted works, including textbooks, and distribute them to students.

“There was a profound change in the legal landscape in 2012,” said Wanda Noel, legal counsel for the provincial and territorial ministries of education except Quebec and some community colleges outside Quebec. In light of the changes, lawyers representing primary and secondary schools, colleges, and universities came up with more specific fair-dealing guidelines for faculty members, teachers and staff.

The guidelines define a short excerpt as: up to 10 percent of a copyright-protected work; one chapter from a book; a single article from a periodical; an entire artistic work (such as a painting or drawing) included in a copyright-protected work; an entire newspaper article or page; an entire single poem or musical score; an entire entry from an encyclopedia, dictionary or other reference work. Many educational institutions have since adopted the guidelines or others that are very similar.

“This case is really about what is a short excerpt,” said Ms. Noel. The lawyers based the guidelines on copyright rules and practices in other countries including Australia, the U.S. and Israel, said Ms. Noel, who argued the case before the Supreme Court. “We didn’t pick ‘10 percent’ and ‘a chapter’ out of the air. That was very well researched.”

Some observers have argued that Access Copyright’s lawsuit is also aimed at putting pressure on institutions that operate without an Access Copyright licence. The model licence that was reached by AUCC and Access Copyright in April 2012 calls for institutions that sign it to pay a royalty fee to the copyright collective of $26 per full-time equivalent student. More than 20 universities, including York, that together represent almost half of student enrolment outside Quebec didn’t sign the licence, balking at the cost and questioning the scope and value of the licence. About half of colleges that are members of the Association of Canadian Community Colleges and all school boards outside Quebec also operate without an Access Copyright licence. (Quebec educational institutions are covered by a separate pact with a Quebec copyright collective.)

Institutions without a model licence rely on fair dealing, open-access materials, transactional licences and digital licences for electronic books and journals to copy materials. Publishers and aggregators of digital materials have increasingly struck licensing agreements directly with educational institutions, bypassing Access Copyright.

Some universities have argued that the value of an Access Copyright licence had been in decline, even before the changes to the Copyright Act were made and the Supreme Court ruling was issued, because its repertoire doesn’t include many digital resources, a claim that Access Copyright disputes.

The University of British Columbia, which operates without an Access Copyright licence, estimates that it pays about $25 million a year to access copyrighted materials. Of that amount, about $10 million is spent on digitally licensed subscriptions. UBC announced earlier this fall that changes in the way it manages its copyright obligations have allowed it to reduce the cost of its course packs by a third. In response, the Writers’ Union of Canada wrote an open letter to UBC President Stephen Toope saying: “Guidelines claiming 10 percent of a book, entire short stories, entire chapters, etc. as fair dealing are not supported by established law in Canada, nor are they likely ever to be.”

Hubert Lai, UBC’s university counsel, said the decision to operate without the licence wasn’t simply a cost-saving measure. “A lot of people think it’s just about the money. That’s not the case,” he said. Although UBC no longer pays royalty fees to Access Copyright, it spends considerable resources to meet its copyright obligations. UBC set up a central copyright clearance office to help faculty, staff and students ensure they are copyright compliant. Another office clears all materials uploaded onto UBC’s online learning management system.

Mr. Lai said the fair-dealing guidelines at the centre of the legal dispute are consistent with the requirements of the Copyright Act. “We fully support York University,” he said.

Ariel Katz, associate professor of law and Innovation Chair in Electronic Commerce at the University of Toronto, said recent changes in Canada’s copyright landscape should spur universities to more forcefully assert their rights as copyright users. “Both Parliament and the Supreme Court have told us in the loudest and clearest voice: ‘You have rights. They are not loopholes. They are not an oversight. They are there deliberately for you to use because it promotes the public interest,’” he said.

At the same time, universities have an obligation to deal with copyright issues in a serious manner which will require spending more money internally. Smaller institutions with fewer resources could choose to pool resources or create joint initiatives, said Professor Katz. “Copyrighted material is our main input and our main output,” he said. “It’s not a marginal issue for universities. It’s at the core of the academic mission.”

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  1. Donald Forsdyke / October 30, 2013 at 1:02 pm

    Ironically, quite often it is academics at universities and colleges who produce the copyrighted material in the first place. Too often, as a condition of publication, publishers insist on copyright transfer to themselves. So they become major beneficaries of the Access Copyright organization’s efforts, rather than those at universities and colleges. Find a mechanism for author-control of copyright, and the tables could be turned to the benefit of universities and colleges.

  2. Kim Maltman / October 30, 2013 at 1:36 pm

    A simple question: do you think it would (1) be reasonable and (2) be accepted by, e.g., Microsoft i.e., without triggering legal action, to buy one copy of a software suite and then claim the freedom to make unlimited copies for use in your university of 1 of the 10 pieces of software in that software suite? That is the exact analogue of what appears to be claimed by universities with respect to the work of authors and other artists.

  3. David Lametti / October 30, 2013 at 5:19 pm

    Kim Maltman’s analogy is incorrect. Education and research and private study are legitimate heads for fair dealing under the Copyright Act. If the computer science department at my university bought the copy of the in order to study it, teach it, do research on it, etc. then the analogy would be closer to the mark, and the the copying perfectly justified as fair dealing. Universities use the texts in question to teach, learn and do research, practices protected by the underlying justifications of copyright law generally and the fair dealing user’s right specifically. So, as amended, (1) yes it is reasonable and (2) the use would be protected.

  4. Bob Morris / November 3, 2013 at 11:24 am

    If universities are prepared to invest in the publication and dissemination of content, they might have a point. But if they rely on the private sector to get this done, why is it unreasonable for those publishers to want to make a profit?

  5. Charlie / January 21, 2014 at 10:47 pm

    Access Copywrite are representing filthy rich publishers. This case will further increase the cost for students. It is not in the best interest of students. The truth is the publishing industry still operates in the Victorian era. Its time good writers build the courage to publish their own work on the internet and do what occurred in the music industry. Remove the big fat middle guys.

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