A Supreme Court of Canada ruling on July 30 dealt a devastating blow to Access Copyright and further entrenched the idea that educational institutions should be free to use copyrighted works in classrooms without recourse to fair financial compensation for creators.
The unanimous decision in the case of York University, et al. v. Canadian Copyright Licensing Agency (“Access Copyright”), et al. stated that because Access Copyright is a collective working on behalf of rights holders and does not directly hold copyright on the works they charge tariffs on, they do not have standing to bring suit in cases of infringement. In its executive summary of the decision, the court notes “that this is not a case of copyright infringement because Access could not make that claim. The only parties who could make that claim are the authors and publishers who own the copyright.”
Furthermore, the court argued that the tariffs set by the Copyright Board are not mandatory, and therefore York University is not bound by them.
Swiftly on the heels of the Supreme Court’s decision, the Association of Canadian Publishers released a statement expressing their belief that the ruling “reinforces that Canada’s copyright framework is broken.” The ACP statement goes on:
Amendments made to the Copyright Act in 2012 opened the door to mass and systematic copying by the K-12 and post-secondary education sector. The sector’s uncompensated copying beyond the legal limits of fair dealing, as determined by the Copyright Board, is in excess of $150M. At the same time, amendments have limited statutory damages for non-commercial use to a point that enforcement is impractical. Urgent action on the part of the federal government is needed to implement reforms that will correct market damage and provide a policy framework that supports future investment in Canadian writing and publishing.
“Everyone knows when you go to the Copyright Board because your negotiations have broken down, they’re going to set a price and that’s the price that has to be paid,” says John Degen, executive director of the Writers’ Union of Canada. “And suddenly, [York is] digging through the statute that created the Copyright Board and says, ‘Oh, look at that: the word mandatory isn’t there.’ ”
Not only does an inability to enforce the Copyright Board’s tariffs render the board “virtually useless” in the words of lawyer Sheila Block, speaking in oral arguments on behalf of Access Copyright, it obviates the rationale for a collective association like Access Copyright itself. “It goes completely against what we’ve been led to understand by the legislation that allowed us to create Access Copyright,” says Degen.
University of Ottawa law professor Michael Geist praised a Supreme Court decision that “resoundingly rejected the copyright collective’s claims” and “removes any doubt that the Supreme Court remains strongly supportive of user’s rights in copyright and vindicates years of educational policy in shifting away from Access Copyright toward alternative means of ensuring compliance with copyright law.” He notes that Block was forced to admit under questioning that there are multiple ways for universities to comply with copyright rules. “This is important,” Geist states, “because educational institutions are spending millions of dollars every year on those alternative licences.”
Maybe so, but how much longer might one expect this situation to persist, given that the Supreme Court has basically signalled to the education sector that they can skirt tariffs set out by the Copyright Board simply by refusing to pay them?
Moreover, the court punted on the issue of fair dealing, which is one of the key sticking points in a dispute that has now dragged on for almost a decade. In 2013, the Federal Court ruled that York’s copying did not constitute fair dealing under Canadian law, a decision that the Federal Court of Appeal refused to overturn. By not addressing this question on a technicality (if Access Copyright does not have standing to sue York, the court argued, the fair dealing question is moot), they have in effect given the university a green light to continue reproducing as much copyrighted material as it wishes without financial or legal repercussions.
One of the most astonishing moments in oral arguments came early, when Justice Rosalie Abella, well known as a staunch users’ rights advocate, asked Block, “Who is harmed by an approach that doesn’t see these tariffs as mandatory?” The obvious answer is creators, but Block’s inability to articulate this did not help matters. The question itself signals a fundamental lack of understanding as to what Access Copyright does and whom it is meant to benefit.
According to the court decision, individual creators retain copyright on their works and are therefore the only ones in a position to sue for redress if they feel their copyright has been violated. Access Copyright is a collective agency with a mandate to act on behalf of copyright holders in matters dealing with reproduction. As Block correctly points out, expecting individual rights holders to do this would be prohibitively expensive and time consuming. This obviously practical situation did not appear to have any effect in swaying the nine justices who seemed much more concerned with semantic legal arguments than the real-world consequences of York’s actions.
Nor did the justices seem disturbed by an apparent double standard in lawyer Guy Pratte’s oral argument. Speaking on behalf of York, Pratte argues that the university must act in an institutional capacity on behalf of its students where ensuring compliance with copyright is concerned. “We’re looking for a way … of actualizing fair dealing rights. If they are the rights of the students, the only people who can do that [are] the institution. We can’t have 50,000 students saying ‘I should have ten pages.’ ” And yet, isn’t this precisely how Access Copyright operates with respect to creators and the publishers who license their content? Why should the principle be different for a copyright collective than for an educational institution?
“Now, extremely clumsily, the court has said, ‘Sorry, I know you’ve spent ten years on this case, but you’re going to have to start all over again, and you’re going to have to start as individuals,’ ” says Degen. This can’t be anything but frustrating to creators who continue to see their intellectual property exploited without remuneration by educational institutions that multiple courts have ruled go well beyond the bounds of fair dealing in their practices.
In her written decision, Justice Abella states, “A proper balance ensures that creators’ rights are recognized, but authorial control is not privileged over the public interest.” No doubt this is true, but the court’s ruling in this case does nothing to strike such a balance. On the contrary, it rewards theft and leaves the victims out to dry.