Access Copyright and the Path to Extended Collective Licensing

Before 2004, copyright laws in Canada only protected owners’ rights in their work. Enter CCH v Law Society of Upper Canada  (“CCH”), where the Supreme Court of Canada (“SCC”) introduced the concept of users’ rights. While the concept of fair dealing had existed in some form since 1924, the Copyright Modernization Act created an exhaustive list of acceptable purposes for copying, including education, to the Copyright Act. This balancing of owners’ rights with users’ rights now plays a central role in copyright litigation. On October 15, 2020, one such case was granted leave to appeal to the SCC, that of York University and Access Copyright.

Access Copyright is a collective society which administers certain copyrights on behalf of its member writers, visual artists, and publishers. Specifically, authors assign the “reproduction” and “making available” rights to Access Copyright, which then licenses its entire repertoire (made up of the works of all of its members) to organizations such as York University. Organizations pay the collective societies royalties via tariffs, which are negotiated between the collective society and the organizations (ss.68-70.1 of the Act). These tariffs encompass specific time periods, often 2-3 years, and may or may not be certified by the Copyright Board of Canada.

Judicial History of Access Copyright and York University

The case at issue revolves around the Copyright Board’s issuance of an interim tariff (at para 1). York University decided to stop paying the tariff mid-way through the term and instead issued fair dealing guidelines to its students, staff, and faculty (collectively, “employees”) under the belief that their activities were acceptable due to the decision in Alberta v Access Copyright or under the newly amended Copyright Act. Access Copyright applied to the courts to enforce the tariff, and York counterclaimed that the tariff was not properly certified pursuant to Section 68 of the Act. The court was asked two questions:

  1. Whether the interim tariff is enforceable against York.
  2. Whether York’s dealings were fair for the purposes of Section 29 of the Act.

At the Federal Court, Justice Phelan decided in favour of Access Copyright, declaring that “the York Fair Dealing Guidelines are not fair” and that tariffs certified by the Copyright Board were mandatory (at para 356). The panel at Federal Court of Appeals reversed in part the earlier decision, finding that the tariff was not mandatory, while dismissing York’s counterclaim that its Guidelines complied with the fair dealing exception.

Extended Collective Licensing in Canada

Collective societies exist to ease the administration and licensing of copyrighted works. Canada legislates via the Copyright Act how collective societies operate and collect such fees. Outside of Canada, many countries have adopted extended collective licensing (“ECL”) regimes, which further legislate how collective societies operate, both to protect society members and non-members on behalf of whom collective societies collect royalties. Depending on the jurisdiction, ECL offers collective societies additional powers, such as legal standing on infringement claims and the ability to issue compulsory licenses.

If not for collective societies, licensing materials would be piecemeal, with universities having to individually licence every textbook, article, and video which its employees wanted to read and make copies of – a very cumbersome task. With collective societies, universities pay a set rate to collectives, reporting on what has been used, and then the collectives pay the owners for their work. With ECL, collective societies could have increased leverage to act on behalf of authors in enforcing their statutory rights and righting any supposed imbalance brought by aspects of fair dealing.

Access Copyright is likely to argue this case in the SCC this year. Whatever decision results will undoubtedly have a lasting effect on our understanding of fair dealing in respect of education and on how collective societies operate.

Written by Rachael Glassman, Osgoode JD Candidate, enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.

 

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