This July, the Federal Court of Canada ruled in favour of The Canadian Copyright Licensing Agency, also known as Access Copyright, in its case against York University. The case was centred around whether York, like U of T, could avoid paying for copyrighted academic material on the basis that the material would be used for research and education.
The ruling means that York will have to resume paying for copyrighted materials from Access Copyright, a non-profit collective that secures licensing fees from users on behalf of Canadian creators and publishers.
The case was built on two parts: whether the fee, known as the Interim Tariff, was mandatory and whether York’s actions constituted fair dealing.
The court’s verdict, given by the Honourable Michel L. Phelan, ruled against the school on both matters. In his decision, Phelan wrote that “the Interim Tariff is mandatory and enforceable against York… York’s own Fair Dealing Guidelines are not fair in either their terms or their application.”
In particular, he cited the guideline that states that faculty and staff may copy up to 10 per cent of a work. Phelan wrote that this rule would make sense when copying from a standalone work, but would be completely ineffective if applied upon an anthology, for example. In that case the entire work could be copied but could still make up less than 10 per cent of the book. As such, he found York’s guidelines to be unfair and delivered the verdict that the school must resume paying Access Copyright.
Background on the case
In 2011, York chose to opt out of paying the Interim Tariff. Instead, the school elected to deal with copyright issues itself by relying on its Fair Dealings Guidelines, which were created to help the university avoid copyright infringement.
Fair dealing is a legal exception to copyright law, which allows users to work with copyrighted material for certain purposes, including research and education, as long as it is “fair.”
York’s decision to opt out prompted Access Copyright to go to court over whether or not the fee was mandatory. In response, York filed a counterclaim seeking to prove that the university’s actions constituted “fair dealing” under its Fair Dealings Guidelines, and thus the university should not have to pay fees.
According to their website, Access Copyright licences the copying of works they represent to “educational institutions, businesses, governments and others. The proceeds gathered when content is copied, remixed, and shared are passed along to the copyright-holders.”
Creators can choose to affiliate with the organization so that they do not have to deal with collecting royalties themselves. In return, “Access Copyright retains a percentage of royalties [they] collect to cover administrative costs,” according to their website.
On July 31, York announced that “while the Court found in favour of Access Copyright and against York University on both these issues, York University has decided to appeal the decision.”
“We take matters of copyright law very seriously,” York’s statement read. “Our Fair Dealing Guidelines are intended to reflect a balance between the interests of creators, publishers and of users and function within a system that continues to include the University spending millions of dollars per year on licenses and acquisitions.”
Ariel Katz, a law professor at U of T, believes that there is a good chance that York’s appeal will be successful but sees the defeat as a “predictable yet totally avoidable loss.”
According to Katz, York’s biggest error was in focusing on whether the university had to pay the Interim Tariff, as opposed to whether tariffs are mandatory in general.
“York has also been eager, it seems, to turn this case into a case about fair dealing, which needs not have happened,” he writes in a blog post on the subject. This was due to the fact that Access Copyright does not itself own any copyrights, which meant that it could not sue York for copyright infringement under Canadian law.
“And since Access Copyright could not sue for copyright infringement, there was no need for York to defend itself against such allegations, and no need to file a counterclaim,” wrote Katz.
Effects on U of T
While York has chosen to appeal the ruling, if it fails, the case could set a precedent for all Canadian universities, including U of T.
Up until December 11, 2013, U of T also had an agreement with Access Copyright, which the school terminated after the organization raised its fees from $3.38 per student to $27.50. Since the end of the deal, the university has also chosen to operate under its own Fair Dealing Guidelines. However, if the Federal Court ruling holds, U of T may be obligated to begin paying the tariff again.
“U of T’s future options involve…whether tariffs are mandatory, and whether, assuming they are, U of T has made infringing reproductions that trigger the obligation to comply with the tariff,” Katz told The Varsity.
Even if the tariffs are found to be mandatory, there is still a chance that U of T can argue that it has not infringed on copyright laws.
Katz said that U of T has different guidelines, which he says are “better, more nuanced, and don’t have many of the weaknesses of York’s.” This means that even if the court’s decision on York is upheld, it’s still open for U of T to convince the court that its own guidelines are exempt from the tariff.
Cheryl Regehr, the Vice-President and Provost for U of T, said that it was too early to say whether U of T would have to resume paying Access Copyright, but that the school was watching the situation closely.
“We have robust fair dealing guidelines that we established a few years ago and we require all faculty and course instructors to follow those fair dealing guidelines,” Regehr told The Varsity. “But at this particular point we’re in a good place, we’re compliant with copyright law, and we’ll continue to do so.”
While Access Copyright is celebrating the decision as “a win for intellectual property owners,” as stated on their website, they are also concerned about how other universities will move forward.
“Although still early, it is disappointing to see some universities inform their faculty and staff that they intend to continue to operate under the same copying practices and policies,” Roanie Levy, the CEO and President of Access Copyright, told The Varsity.
“The Court was unequivocal. These policies lead to illegal behavior,” she said. Levy added that Access Copyright is nonetheless “open to working collaboratively with educational institutions to resolve the situation in an amicable fashion in time for the new school year.”