It has been over three years since U of T ended its agreement with Access Copyright, a non-profit organization tasked with collecting licensing fees for copyrighted material and distributing the proceeds to publishers. At present, the issue of academic fair dealing remains a primary concern for students in light of a recent Federal Court decision.
This July, the Federal Court sided with Access Copyright in its lawsuit against York University, which began after York ended its own agreement with the organization. York plans to appeal the decision. We ought to pay attention to the eventual result of this legal battle: its outcome will have significant ramifications for student life and for academia.
Many students currently enrolled at Canadian universities may be unfamiliar with the ongoing controversies surrounding Access Copyright. Over the years, the organization has held agreements with many universities across the country, which stipulated charging each student a tariff for the use of copyrighted material in course packs. At U of T, prior to the termination of the agreement in December 2013, each student was charged $27.50 per year, totaling approximately $1.5 million annually.
Even without legal knowledge of the situation, it is easy to see the downside of the prior arrangement with Access Copyright. Students are already being nickel-and-dimed by the costs of tuition, books, and living in Toronto. An annual overall loss of $1.5 million is a lot of money in the first place — especially for knowledge that should arguably be accessible to the student body.
As defined in the Copyright Act, fair dealing laws in Canada allow for copyrighted material to be used for free without the permission of the copyright holder, so long as it is for one of the delineated purposes. These purposes include activities central to the university’s mandate: research, private study, and education. Accordingly, in a 2012 Supreme Court of Canada (SCC) ruling, it was decided that educators could photocopy excerpts of copyrighted material to use in classroom settings without the copyright owner’s permission. It was due to this decision that York and U of T decided to terminate their agreements with Access Copyright and stop charging students the annual fee.
Despite the 2012 SCC ruling and the Federal Government’s subsequent reforms to the Copyright Act, the concept of fair dealing in Canadian copyright law remains a murky one. There is no one definition provided in the legislation or in the case law. Instead, judges are to make context-specific decisions based on the general guidelines in the Act and the facts of individual cases.
The guidelines that York University followed permitted the use of a “short excerpt” of a work to be republished in course materials. A “short excerpt” was defined as up to 10 per cent or less of a work, one chapter from a book, one article from a periodical, one artistic work from a collection containing multiple artistic works, one poem or musical work from a collection of other works, or one entry from a reference publication. The court ruled that the 10 per cent rule was arbitrary, given that it was possible for 100 per cent of a work to be copied if the work was spread across multiple courses.
There is a case to be made that the Federal Court provided an unduly narrow interpretation of fair dealing in this case. Under Access Copyright’s own agreement, the definition of a “short excerpt” is 20 per cent, which is just as arbitrary and subject to the same issues as a 10 per cent limit. Nevertheless, if the ruling survives the appeals process, York will be required to reinstitute the deal for good — and given U of T’s own history with Access Copyright, it may be forced to do the same.
U of T’s 2012 deal with Access Copyright was understandably unpopular with the student body. Following the 2012 SCC ruling, substantial time, effort, and collective action, including on the part of the University of Toronto Students’ Union, went into lobbying the administration to scrap the deal. Given the relative arbitrariness of the Federal Court’s ruling, it would be a shame if those efforts went to waste.
And though some students may be able to accommodate forking over an extra $27.50 per year, the question of whether they should be required to do so is one that should be taken seriously. Due to its prestige as well as its price tag, the university remains a profoundly inaccessible institution for many. Restricting knowledge to those who have the ability to pay for it thus seems like a step in the wrong direction.
We should keep a close eye on the results of the York case. If it reaches the Supreme Court, let’s hope it raises its authoritative voice in favour of students, or else our ability to access educational materials may be compromised.
