York University loses licensing case against Access Copyright, plans to appeal

Order to pay tariff may set precedent for U of T

York University loses licensing case against Access Copyright, plans to appeal

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.

Moving forward

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.”

Protecting fair dealing in education

Access Copyright’s lawsuit against York University will have far-reaching effects for students across Canada

Protecting fair dealing in education

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.

Post-Access Copyright era off to a rocky start

Professors confused, frustrated by new copyright rules

Post-Access Copyright era off to a rocky start

Following inquiries by The Varsity, U of T students have received a $13 reimbursment for fees paid to Access Copyright at the beginning of the year. In the past, the university has chosen not to reimburse students, as in Febuary of last year when they chose not to provide a refund for “illegal” ancillary fees. The university made the decision to end their license with Access Copyright earlier this past December, allowing for the refund. The end of the licence has been met with a mixed response, with student unions seeing it as a victory and writers unions calling it unfair to the Canadian community of creators and publishers.

The end of the license seems to be causing a problem for some professors as the winter semester begins. Numerous students have reported instances of professors explaining to their classes that they must remove content from Blackboard, and are unclear when or if this material can be reposted. In one instance a student reported an instructor emailing the material from a personal account so as to avoid the new copyright guidelines. In nearly a dozen other classes, students reported instructors expressing confusion and frustration over the mid-year switch.

Munib Sajjad, president of the University of Toronto Students’ Union (UTSU), said that the union applauds the move by the university. The union feels the ancillary fee students were paying to the company were unnecessary given a 2012 Supreme Court decision that expanded the definition of fair use of copyrighted materials for educational purposes. Cameron Wathey, vice-president internal, echoed Sajjad: “This tremendous victory will save each student $27.50 per year, which ultimately will save students $1.5 million in total.”

Despite the positive outlook from the UTSU, several organizations representing Canadian creators and publishers feel the university is not respecting their work by ending the license. The Writers’ Union of Canada, the Canadian Authors Association, the Professional Writers Association of Canada, the Association of Canadian Publishers, the Canadian Publishers’ Council, and the Canadian Educational Resources Council have all expressed their disappointment with the university’s new approach. Dorris Heffron, Chair of The Writers’ Union of Canada (TWUC), feels the university’s interpretation of copyright law does not support Canadian writers and publishers.

Currently the university is operating under a policy where if a professor uses 10 per cent or less of a work it is constituted as fair dealing, and therefore does not require a copyright license. “People aren’t buying our books, but they’re taking excerpts of them to teach, and that’s not supporting us,” explained Heffron. “I get a hundred emails a day from our members upset about this matter.” Heffron said that the union is considering a wide range of potential responses, but that a protest on the university campus will likely follow.

Bobby Glushko, head of the newly founded one-man copyright office at U of T, disagrees with Heffron. “It really bothers me when people say that we’re not respecting authors — it’s unfair because we actually pay authors a tremendous amount of money — we employ thousands of published authors. Almost all of your faculty are published authors; we have nothing but respect for authors and authorship.” Glushko went on to say that he believes the problem lies in the interpretation of copyright law — Access Copyright and TWUC believe that the university is interpreting the new fair dealing guidelines unfairly. “Our response is: Well is it fair for our students to be subsidizing these authors when no one else is?” said Glushko, explaining that he would have preferred to keep the university’s license with Access Copyright, but that they were unable to negotiate a price that the university thought appropriate for the services provided.

Executive director of Access Copyright, Roanie Levy, acknowledges that the disagreement lies in different interpretations of copyright law. “The university has indicated it will rely, in part, on an expanded interpretation of fair dealing that is not supported by law,” said Levy. “Canada’s creators and publishers believe that it will ultimately prove harmful to the supply of Canadian content.” Access Copyright is currently involved in a lawsuit against York University based on York’s current copyright office’s practices regarding copyright law.

Beyond disagreements about interpretation of the law, Access Copyright has also called into question the university’s readiness to take on the task of handling its own copyright; U of T has hired a single copyright librarian to oversee the change; Access Copyright is a national organization that has been handling copyright issues since 1988. “The issue now is the scope of the university’s copyright responsibilities in the absence of the Access Copyright license,” said Levy.

Glushko hopes he will eventually have more people working under him, but is unable to confirm if this will ever be a possibility. “It’s me, and two unfilled positions. I envision an office with three or four employees and a few student employees and myself. It’s really up to the budgeting process,” said Glushko. When asked if he was able to handle the copyright office on his own, Glushko was confident that he was up to the task. He explained that the university is using a similar model to the one it used before ending its agreement with Access Copyright.

According to Glushko, the only change since the end of the license is that where previously professors had the ability to use 20 per cent of any material found in the Access Copyright repertoire, now faculty must make the decision to either use 10 per cent of the material and have it fall under fair dealing, or ask the students to purchase the entire book. Chief librarian Larry Alford expanded upon this point, explaining that professors are required to take down any material on Blackboard that is included in the Access Copyright repertoire, but can replace it if it is included in a license currently held by the university, or if it falls under fair dealing or the public domain. If the material in question is not included in any of these categories, the faculty must work to either pay for it on a transaction basis or find alternative material altogether.

Glushko remains confident that the university is up to the task despite pushback and a need to divert other library resources to help cope with the shift: “We’re the University of Toronto; we’re a very special institution. We’re obviously going to try and learn from people who have come before us, but ultimately, we’ll create something that works for us.”

With files from Murad Hemmadi