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Supreme Court sides with York University in copyright tariff dispute

Access Copyright now calling on federal government to ‘remedy the untenable situation’ for Canadian creators by reforming Copyright Act.

BY LAURA BEAULNE-STUEBING | SEP 07 2021

The years-long legal dispute between York University and Access Copyright came to a close on July 30 with a unanimous Supreme Court of Canada judgment. In a win for York, the Supreme Court upheld a previous decision which stated that copyright tariffs imposed by Access Copyright, a non-profit organization that collects and distributes royalties for Canadian authors and publishers, are not mandatory for postsecondary institutions that choose not to have a license agreement with the organization.

The Supreme Court also declined to make a judgment on  York’s guidelines on fair dealing (an exemption to copyright infringement in the Copyright Act that applies under certain conditions, including research, satire, news reporting and, since 2012, education)  because it did not believe Access Copyright had proper standing for there to be a ruling on this aspect of the case. Instead, the Supreme Court stated that it does not endorse previous judgments from the Federal Court and Federal Court of Appeal that ruled against York’s fair dealing guidelines.

Almost a decade of litigation

The case originated in 2013 when Access Copyright took York to Federal Court to try to compel the university to pay interim tariffs on copied works in its repertoire. York and Access Copyright had a license agreement between 1994 and 2010, but when the copyright collective raised its licensing fees, the two were unable to negotiate another deal in 2011. Access Copyright then implemented an interim tariff, which had been approved by the Copyright Board of Canada. York paid the tariff for a short time but eventually opted out to navigate copyright on its own with other licenses, subscriptions and open-access content.

The Federal Court sided with Access Copyright, ruling that the university owed royalty payments to the organization and that its tariff regime was mandatory and enforceable. The case was then brought to the Federal Court of Appeal, which ruled in 2020 that the tariffs were not enforceable, but that York was also not justified in its fair dealing guidelines. That led Access Copyright to file an application for leave to appeal the Federal Court of Appeal’s decision with the Supreme Court.

In a press release following the Supreme Court ruling, York stated that it is pleased that the court affirmed the “voluntary nature of the tariff and the ability of educational institutions to obtain license agreements from other sources. This confirms the flexibility of universities in how they manage copyright.” The court also “reinforced that fair dealing remains crucial to actualizing users’ rights in education,” the university said, adding that it designed its fair dealing guidelines to reflect the need for proper balance between the rights of the copyright owner and the ability of users to pursue research, studies and education.

Sense of relief for universities

“The fact that the tariffs are not mandatory [is] a real weight off our shoulders,” said Sam Trosow, a professor in the faculties of information and media studies and law at Western University. If the Supreme Court had delivered a different judgment, it “would have been an absolute disaster” and would have forced universities to limit their use of fair dealing or risk retaliation from Access Copyright, he suggested. “I think that really scared a lot of people.”

The case’s hearing in May was the last for retired Supreme Court Justice Rosalie Abella, who is considered an instrumental player in strengthening user rights in Canadian copyright law and developing the country’s fair dealing legal system. Dr. Trosow suggested that her role in the ruling, released 30 days after her retirement on July 1, was a “last parting gift” to universities on the Copyright Act’s fair dealing exemption. “She really wanted to make it clear that her legacy was about campuses feeling comfortable with the expanded fair dealing doctrine.”

The opportunity for postsecondary institutions to expand their use of fair dealing is the big takeaway from the legal dispute between York and Access Copyright, Dr. Trosow said. “What does this mean for Canadian colleges and universities? It’s really time for us to reevaluate and revisit our campus copyright and fair dealing policies and ask ourselves, ‘Could these be extended?’”

Should the federal government get involved?

In response to the Supreme Court’s ruling, Access Copyright called on the federal government to “remedy the untenable situation in which creators find themselves as a result of the Court’s decision.” In a statement, the organization said that after nearly 10 years of litigation, Canadian creators are still “left fighting for fair compensation” from the education sector.

“Educational institutions should be setting an example by respecting the work of others by fairly compensating creators for the use of their work,” said Roanie Levy, the copyright collective’s president and CEO. “There are no winners with [the] Supreme Court decision: we will all have fewer stories that speak directly to us as Canadians and chronicle our shared reality.”

Other organizations, including the Association of Canadian Publishers and the Writer’s Union of Canada, echoed Access Copyright’s statement, urging the federal government to get involved by reforming the Copyright Act. However, Dr. Trosow hopes that rather than pushing Parliament to change the act, Access Copyright will ask how it can better provide services to its university clients. He added that bringing the Copyright Act to Parliament would put a target on the back of the fair dealing exemption and force universities to convince parliamentary committees “that no, we’re not trying to get everything for free.”

The works represented by Access Copyright and other publishing and writing organizations do not factor in as readings in university classes as much as those organizations make it seem, Dr. Trosow said. “When university professors assign readings for students, for the most part … what’s being assigned are academic works that have been written for other academics,” he argued. Certainly, there are exceptions in fields like literature and poetry, but “as an academic, as a law professor, what’s my motivation? My motivation is not to get, instead of maybe $20 a year, $700 a year from Access Copyright. My motivation is for people to read my articles and cite them.”

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  1. Lisa Macklem / September 11, 2021 at 08:21

    As usual, the Access Copyright response misconstrues what educational institutions are doing. As Dr Trosow points out, the vast majority of works assigned are academic writings, so if the academics assigning them were taking money out of anybody’s pockets, it would be their own. It should be pointed out as well that academics rarely, if ever, see remuneration for publishing scholarly articles. However, that also is not directly the point. The works are still being paid the royalties owed – just not through Access Copyright. Univerisities and libraries spend millions of dollars on databases every year, that contain works for which the database remunerates the authors. Universities also buy thousands of books each year. Furthermore, where are most of these authors being educated? University. Univerisities have a vested interest in the success of writers, creators, and innovators. Finally, I would also suggest that the clients Access Copyright needs to better serve are the creators who have clearly gone elsewhere to collect their royalties.