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Copyright back in the spotlight with several impending decisions

A lawsuit and federal review of Canada’s copyright act could have wide implications for universities.

By ANQI SHEN | September 21, 2016

Canada could see changes to its copyright landscape in light of upcoming legal and policy decisions. On the legal front, all eyes are on the impending ruling in the lawsuit brought against York University by Access Copyright, an organization that collects and distributes royalty fees on behalf of authors and publishers. Alongside the lawsuit, there is a long-standing debate around copyright tariffs that has yet to be resolved. On top of that, the federal government will be reviewing Canada’s Copyright Act starting sometime in 2017. Amendments to the Act in 2012 mandated that a review take place every five years, so this will be the first such review.

In June, closing arguments were heard in the civil lawsuit against York. The case will serve as a landmark test of fair dealing for education purposes that could have wide-reaching implications for Canada’s educational institutions and copyright collectives. The lawsuit has been split into two parts. The first deals with whether copies made within York’s fair dealing guidelines – also used by many other universities across Canada – constitute fair dealing under the Copyright Act, and whether copying practices at York were subject to a tariff from 2011 to 2013. Depending on the outcome, a second phase would look into more specific issues such as any amounts owed. A decision from the Federal Court could come in the next several months, though the ruling could also be appealed.

Background

Before the trial began, Access Copyright had applied for a tariff of $26 per full-time-equivalent (FTE) student for the periods of 2011-13 and 2014-17 at the Copyright Board of Canada, a regulatory body that hears evidence and sets the price of copyright tariffs. A hearing took place in January, but the tariff discussions date back many years. The proposed fee in this case would apply to postsecondary institutions outside of Quebec for the copying of works in Access Copyright’s repertoire that falls outside of fair dealing.

Fair dealing for education purposes is at the heart of the lawsuit and tariff proceedings, with Access Copyright issuing a challenge that copying done at universities, and York in particular, has infringed copyright. In the Copyright Act, fair dealing exemptions permit the use of copyright-protected works, without permission from rights holders or the payment of royalty fees, if the material is used for research, private study and other specified purposes. Amendments to the act in 2012 expanded the exemptions to include education. The Supreme Court also ruled the same year in Alberta v. Access Copyright that fair dealing allows teachers to photocopy short excerpts of works and distribute them to students to supplement textbooks.

Since the release of those decisions, universities have adopted guidelines for students and employees that describe what a short excerpt means and how to determine whether copying is fair. However, Erin Finlay, director, legal and government affairs, and general counsel for Access Copyright, said the organization disagrees with how universities have interpreted fair dealing. “The guidelines encourage uncompensated copying which hurts the creation, and incentive to create, new quality content,” Ms. Finlay said, although she declined to comment specifically on the litigation against York. “The Supreme Court decision [in 2012] was about the K-12 sector – it was a completely different factual scenario that the court was looking at there.”

Since 2012, many Canadian universities including York decided not to renew licensing agreements with Access Copyright following the legislative reforms and Supreme Court decisions. “I think that institutions of higher education and libraries have just been following the guidance that the courts and administrative bodies in Parliament have given us,” said Robert Glushko, the former head of scholarly communications and copyright at the University of Toronto Libraries, who now works as associate chief librarian at Western University. “Education [as a fair dealing purpose] does make it a lot clearer for us. … You also have to look at that in the context of the really rapid and completely unsustainable increase in the cost of institutional licences from Access Copyright.”

The cost of a license from Access Copyright increased within a decade from $3 per FTE student, plus $0.10 per page for course packs, to a proposed $45 in 2010. In recent years, Canadian universities and libraries have built infrastructures to license works through various other avenues, including contracts with journal databases, individual publishers and consortia. As a result, many felt that the value of a blanket license from Access Copyright had diminished, and that universities were paying more than once for content covered by the license. “People can get the same materials in any number of different ways or use other materials that may have open access licenses for which there are no fees applicable and no further permissions needed,” said Michael Geist, Canada Research Chair in internet and e-commerce law at the University of Ottawa.

Making matters more complex, the process of valuing tariffs at the Copyright Board has been a long and challenging one. A Supreme Court decision last November in a lawsuit brought by CBC against SODRAC, a copyright collective in the music industry, has raised even more questions about how the market price will be set, taking into account the principle of technological neutrality. “One of the things the Supreme Court said is the Copyright Board is going to have to entirely review the way it arrives at the amount. That means in practice there’s a huge uncertainty,” said Adriane Porcin, assistant professor in the University of Manitoba’s faculty of law.

What’s next

Next year, the copyright debate will be charged up again when the federal government launches its first mandatory review of copyright laws. The government has yet to reveal details of when consultations will begin and how the review will be conducted, but there is strong interest on all sides of the debate in what it will find. “I think this is something that needs to be looked at,” said Ysolde Gendreau, professor in the faculty of law at Université de Montréal. “What I read in the statute and when I take into consideration what the Supreme Court has said, I find that [the law] is unbalanced in favour of users. … The balance is not something that can be achieved section by section in the act.”

Paul Davidson, president of Universities Canada, the organization advocating on behalf of its 97 member universities and publisher of University Affairs, said he welcomes the five-year review “because it is a changing landscape, and it is a global conversation.” He added: “In some ways, the issues haven’t changed. [But] what has changed over the years is there’s been a body of law that’s been developed that preserves the rights of users to use copyrighted material for education, research and private study. So it’s a long story, but copyright is important to students, to faculty and it’s important to the institutions themselves.”

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