In Access Copyright v. York University appeals court sends 'untenable message'

By Emmanuel Legrand

The content licensing sector in Canada has been assessing the implications of a Federal Court of Appeal ruling that delivered a mixed message.

  The case relates to the conflict between the Canadian Copyright Licensing Agency (Access Copyright), which licenses a reprography right to copy content to universities, and York University, which had ceased to pay Access Copyright, arguing that copying books was part of the country's fair dealing provisions.

  The ruling confirmed a previous lower-court decision which stated that the fair dealing guidelines adopted by York did not meet the Supreme Court’s test for fair dealing, but, in a blow to Access Copyright, had not concurred with the finding that tariffs certified by the Copyright Board of Canada are mandatory.

A copyright mess

  John Degen, executive director of The Writers’ Union of Canada, summed up the ruling in a tweet: "The copyright mess in Canada continues. Federal Court of Appeal says yes, indeed, massive amounts of educational copying is illegal, BUT creators have no collective avenue for pursuing remedy. You sure do have rights. Good luck protecting them. Fix this, please. @JustinTrudeau."  

  The case goes back a decade ago to when license renewal negotiations between York University and Access Copyright were in a deadlock. As authorised by Canadian copyright law, Access Copyright applied to the Copyright Board for and was granted an interim tariff covering the copying of protected works in post-secondary educational institutions.

  York initially complied with the terms of the interim tariff but then “opted out” and introduced its “Fair Guidelines for York Faculty and Staff" in November 2011, which led faculty and staff to copy significant amounts of material for which York paid no license fees or royalties.  

Copying is not fair dealing

  Access Copyright sued York to enforce the interim tariff, seeking various remedies including royalties as provided in the tariff. York counterclaimed, seeking a declaration that all copying which fell within the terms of the Guidelines constituted fair dealing. A Federal Court allowed Access Copyright’s action and dismissed York’s counterclaim, which led to the appeal.  

  Appeals judge DenisPelletier wrote in his ruling: "I would allow York’s appeal on the basis that a tariff approved by the Copyright Board (the Board), as the interim tariff was, is not 'mandatory' in the sense that it is enforceable against anyone whose use of the protected works is an infringement of the copyright owner’s exclusive rights. I would dismiss York’s counterclaim on the basis that its Guidelines do not ensure that copying which comes within their terms is fair dealing."

  For Access Copyright, the Court’s decision on fair dealing "struck the right balance between the public good that is education and the need to reward creators so that teachers and students continue to be well supported by quality Canadian content."

A deeply detrImental decision

  However, what is described as an "important win for creators and publishers starkly contrasts with the finding that tariffs are not mandatory." For the licensing agency, "this is deeply detrimental to a well-functioning copyright regime by rendering the tariff process largely futile. It also deepens the challenges experienced by content creators and publishers to make a sustainable living from their work."  

  In a statement, Access Copyright said: "The Court of Appeal’s decision on mandatory tariffs deprives creators of fair and affordable payment for the use of their work by stripping them of the ability to rely on their collective to ensure compliance with their rights and forcing them to be their own compliance officers."

  “When Access Copyright launched legal action against York University in 2013 to uphold the rights of creators and publishers, we knew the road ahead was long,” said Roanie Levy, president and CEO of Access Copyright. “The decision by the Federal Court of Appeal sends an untenable message for rights holders: educational institutions that are following the education sector’s fair-dealing guidelines are copying unfairly, but the collective that has been authorized by thousands of rights holders to administer and protect their copyright has no avenue to enforce their rights in their work. Access Copyright will continue doing what is necessary on behalf of our rights holders to ensure they are fairly paid for the use of their work.”

Mixed reactions

  The Association of Canadian Publishers (ACP) reacted to the ruling saying that Canada’s “copyright framework is broken.” ACP executive director Kate Edwards commented: “Through Access Copyright, Canadian publishers have participated in the Copyright Board’s multi-year tariff process in good faith, and with an expectation of fair and reasonable compensation for the use of their content. The Court of Appeal’s decision on mandatory tariffs makes future engagement in this process futile, and leaves small and medium-sized rights holders in the untenable position of pursuing compliance on their own, rather than through their collective.”

  Academic Michael Geist, from the University of Ottawa, who tends to take copyleft positions, wroteof the ruling: "The latest ruling will not leave York University and the education community completely happy given the court’s fair dealing analysis, but winning on the mandatory tariff issue removes both the threat of mandated payments to Access Copyright as well as the possibility of a copyright infringement lawsuit by the copyright collective. That represents an enormous win both for York and for a fair approach to copyright licensing that ensures users have licensing choice."

  Richard Pfohl, General Counsel at Music Canada, which represents the main record companies in Canada, told this writer that he expects the ruling to be overturned. "What's wrongly decided is whether collectives can enforce tariffs," said Pfohl. "It will be appealed and I expect it to be overturned because it does not make sense with the copyright regime set up in Canada."

A non-workable solution

  For Pfohl, the ruling "creates a sort of non-workable situation." He elaborates: "The decision says the Universities do not have fair dealing to excuse them from making copies, but basically says that the collective does not have the right to enforce the tariffs. The problem is that it makes the whole system not working, because why would you file for a tariff with the Copyright Board if you can't enforce it."  

  Pfohl added that the system to get a tariff certified by the Board takes years and costs millions. "Effectively, why would you file a tariff?" Asked Pfohl. "I don't know why anyone would be doing it if upheld. It does not make any sense."

  Pfohl said that Geist and "a cabal of anti-copyright activists convinced universities that they should pay nothing, and librarians like it because it keeps their costs down, but it is a perverse system that does not work."