A Win for Users’ Rights: Supreme Court Finds Access Copyright Tariff Not Mandatory and End-User Perspective Must be Considered in Fair Dealing Analyses

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Photo by Thomas Guignard from Flickr

Sabrina MacklaiSabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

 

On July 30, the Supreme Court of Canada released their much-anticipated judgement in York University v Canadian Copyright Licensing Agency (Access Copyright) [York University]. The unanimous decision, written by Justice Abella, endorses several past Supreme Court judgements including CCH Canadian Ltd v Law Society of Upper Canada and Alberta (Education) v Access Copyright. Perhaps one of the most important copyright decisions since the 2012 ‘pentalogy’ cases, York University reflects the Supreme Court’s intention to develop Canadian copyright law in a way that maintains a balance between users’ and creators’ rights.

Background

Historically, Canadian educational institutions negotiated licence agreements with copyright collectives Access Copyright and Copibec to fulfill their copying needs within the collectives’ repertoires. In 2010, Access Copyright sought the Copyright Board’s approval for a new proposed tariff for post-secondary education institutions of a flat fee of $45 per full-time university student and $35 per full-time college student per year. This was a drastic increase from the fees stipulated in the 1994 to 2010 licence agreement between Access Copyright and post-secondary institutions. On December 23, 2010, the Copyright Board granted Access Copyright an interim tariff at the rate of $3.38 per full-time student and $0.10 per page for course packs, receiving considerable backlash from educators. In anticipation of the upcoming academic session in July of 2011, York University chose to “opt out” of Access Copyright’s licensing agreement and rely on alternative means, particularly the “educational purpose” under the Copyright Act’s section 29 fair dealing exception, to continue reproducing copyrighted works for their students. Like with most educational and library institutions, York University published internal “Fair Dealing Guidelines” that interpret section 29 to help York faculty and staff comply with the law. Access Copyright subsequently sued for copyright infringement. York then counterclaimed and sought a declaration that its Fair Dealing Guidelines complied with section 29 of the Act.

In 2017, the Federal Court ruled in favour of Access Copyright in all regards, claiming that the interim tariff is mandatory and that York University’s Fair Dealing Guidelines and its actual practices are not fair under section 29. In 2020, the Federal Court of Appeal reversed the lower court’s decision on the tariff issue, finding that tariffs set by the Copyright Board are only applicable to those voluntarily under a licence with Access Copyright and therefore not mandatory. However, on the fair dealing issue, the Federal Court of Appeal found that the lower court did not make any “palpable and overriding errors” in conducting their fair dealing analysis. 

Issues at Appeal

The Supreme Court appeal considered two issues: 1) is the tariff mandatory? and 2) if the tariff is mandatory, are York’s Fair Dealing Guidelines “fair” such that their activities may be covered by section 29 fair dealing?

Access Copyright’s Non-Mandatory Interim Tariff

The Supreme Court upheld the Federal Court of Appeal’s reasoning on the tariffs issue, agreeing that the interim tariff is not mandatory and thus not enforceable against York University. They affirmed that users are free to pursue alternative methods to lawfully copy works, such as acquiring transactional or site licences or relying on section 29 fair dealing. In their reasons, they drew heavily upon arguments made by Professor Ariel Katz at the University of Toronto Faculty of Law, who asserted that where a user makes an unauthorized use, the appropriate remedy is an action for infringement—one that Access Copyright lacks standing to initiate.

Considering the Ultimate User in Fair Dealing Analyses

Although the Court deemed it inappropriate to rule on fair dealing, given that this is not a copyright infringement suit, Justice Abella nonetheless provided helpful obiter on fair dealing in Canada. Namely, she clarified that the reasoning of both the Federal Court and Federal Court of Appeal on the fair dealing issue is not endorsed. Both lower courts erred in their evaluation of the purpose of the work, by only considering the institutional perspective. As Justice Abella discussed in multiple past decisions, including Alberta, the end-user perspective must also be considered when assessing the fairness of a dealing. In this case, but for the students, there would be no copying. Therefore, the judgement must consider the students’ perspective. The institutional purpose is not completely irrelevant, but it must be interpreted in light of the end-user. Here, Justice Abella found that educational institutions have no “ulterior or commercial purpose” when copying for their students’ benefit under fair dealing, even if the institutions benefit financially by saving funds. As the first discussion of the educational purpose of fair dealing since it was introduced during the 2012 amendments to the Act, the Supreme Court clarifies that the appropriate way to assess an educational institution’s fair dealing practices is to determine whether those practices facilitate their students’ educational purposes in a fair manner, maintaining the balance between users’ and creators’ rights.

York University adds to a growing list of copyright jurisprudence by the Supreme Court, many of which were spearheaded by the now-retired Justice Abella. This latest decision delivers several wins to the users’ rights community, particularly through confirming that users always have the choice to rely on section 29 fair dealing when working with copyright-protected materials. Educators and librarians across the country can breathe a sigh of relief that they may continue to lawfully offer their services, many of which rely on fair dealing, to the benefit of their students and patrons.

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