On Friday, July 30, the Supreme Court of Canada released its decision on Access Copyright v. York University. The decision was wholly positive for the post-secondary sector. The Case in Brief is available here and the full Reasons for Judgement are available here.
This decision brings to an end a legal saga that effectively began in 2011. I have written previously about the Federal Court decision on the case in July 2017, as well as the Federal Court of Appeal (FCA) decision in April 2020.
The case focuses on how post-secondary institutions can provide their students with access to course materials in a manner that is compliant with copyright law. The case has two key issues. The first issue is whether Copyright Board tariffs are mandatory or voluntary; in other words, whether an institution can “opt out” of a tariff and pursue alternate routes for lawfully managing its activities. The second issue is how post-secondary institutions should assess fair dealing in reproducing and distributing course materials to students.
Tariffs
Access Copyright offers an institutional licence, the fee for which is a flat amount per FTE student, allowing for limited reproduction and distribution of materials that are within the Access Copyright repertoire of print-based literary works. These fees are based on a tariff approved by the Copyright Board.
University libraries have been licensing an increasing number of online resources directly from publishers, including ebooks, that are made available to members of their university community. In addition, there is increasing availability of open access materials and open educational resources. In augmenting these with a considered approach to fair dealing, as permitted under the Copyright Act, and using transactional licences on a case-by-case basis, many institutions have identified a clear model for providing their students with lawful access to course materials without the considerable additional expense and questionable additional value of an institutional licence from Access Copyright.
York University was among the institutions who decided in 2011 to manage its copyright issues related to providing students with access to course materials without such an Access Copyright licence. Access Copyright sued York University, contending that the Copyright Board tariff had mandatory application against post-secondary institutions. It was argued that, under a mandatory tariff, irrespective of how York was arranging its affairs in relation to copyright compliance, and even in the absence of an agreement with Access Copyright, York should be paying a licence fee to Access Copyright.
The Supreme Court of Canada found that “under the existing relevant legislation in this appeal, an approved tariff is not binding against a user who does not accept a licence.” [para. 76]. Part of the rationale for this decision is as follows.
The legal consequence of Access Copyright’s mandatory tariff theory would be that a user would be liable to pay royalties in full as soon as it became responsible for any infringing use of a work within a collective society’s repertoire. […]. For a university that attempts to clear its copyright obligations using alternative licences and fair dealing, a single infringing use — one that was not authorized by fair dealing or independently licensed — could thereby become a tripwire making the university liable to pay the full royalties in a tariff. This “Sword of Damocles”, as the intervener the Canadian Association of Research Libraries aptly put it, renders a university’s freedom to clear its copyright obligations without involving Access Copyright completely illusory [para. 72].
The Supreme Court’s decision on this issue no doubt led to a collective sigh of relief at post-secondary institutions across the country, who now have certainty that they will not have to pay a retroactive tariff for 5-10 years, depending on when they opted out of an institutional agreement with Access Copyright. The University of Alberta opted out at the end of 2015.
Fair Dealing
To defend against Access Copyright’s contention that the tariff is mandatory, York had taken the position that, even if the tariff is mandatory, York’s uses of copyright-protected materials are either under licence or under its fair dealing guidelines. Therefore, if the court would affirm that any reproduction and distribution of course materials under York’s fair dealing guidelines is, in fact, fair dealing, then even if the tariff were mandatory, there has been no infringement by York that would trigger any required payment under the tariff.
The Supreme Court of Canada chose not to look at the specifics of York’s fair dealing guidelines, as no specific infringement claim had been made against York and because the finding that the tariff was not mandatory removed York’s need for such a fair dealing defence in relation to a mandatory tariff.
However, the Court did choose to speak to a few errors in the Federal Court’s and the Federal Court of Appeal’s fair dealing analysis.
In commenting on those errors, it is important to emphasize that our reasons do not decide the issue of fair dealing, which can only be determined in a factual context. Rather, the objective is to correct some aspects of the reasoning from the courts under review which, respectfully, depart from this Court’s jurisprudence [para. 88].
The Court identified some of the same issues from the lower court decisions that had been troubling to post-secondary institutions. The lower courts had prioritized the “purpose of the institution” over the “purpose of the students” in their analyses of the fairness of the dealings relating to the reproduction and distribution of course materials. The Supreme Court of Canada made it clear that the purpose of the students must be considered in such cases. The Court did state that the purpose of the institution could be relevant to the analysis, but it emphasized the importance of the purpose of the students as the end-users of the material. This is in keeping with the perspective taken by post-secondary institutions in the development of their fair dealing guidelines.
Moving Forward
Now that this long legal saga that has been weighing on post-secondary institutions for nearly a decade is finally over, where does this leave us?
The ruling that the Copyright Board-approved post-secondary tariff is voluntary rather than mandatory confirms that institutions are free to structure their affairs as they see fit in order to use copyright-protected materials in a lawful way. With the growth in number and scope of online resources, including ebooks, licensed through university libraries, as well as the increasing availability of openly licensed resources, the percentage of works that are used as course materials for which institutions are applying fair dealing is declining. However, the availability of fair dealing will remain important in any institutional copyright policy and practice in relation to the distribution of course materials.
Fair dealing is contextual. The effect of a dealing and available alternatives to a dealing can change over time, even for the same use of the same work. Routinely revisiting any fair dealing guidelines to confirm they are still in keeping with current practice and the current environment is important to ensure that fairness is maintained.
This ongoing litigation regarding post-secondary fair dealing guidelines has almost certainly led to a reluctance to review and update such guidelines in recent years. The role of guidelines, the effectiveness of guidelines, how works are categorized, what factors are considered in making determinations under the guidelines, and how often and under what circumstances the fair dealing guidelines are being relied upon in a given year – ideally, all these would be revisited, to the extent practical, on a regular basis.
It is highly unlikely that one set of institutional guidelines would be ideal for all institutions, and it may be that not all institutions will benefit from implementing or continuing to use institutional guidelines. Institutions differ in size and in their approach to providing access to resources, among many other differences.
At the end of the day, the question in a case involving a university’s fair dealing practices is whether those practices actualize the students’ right to receive course material for educational purposes in a fair manner, consistent with the underlying balance between users’ rights and creators’ rights in the Act [para. 106]
Institutional guidelines are ultimately about managing institutional risk. There are a number of matters in copyright that involve interpretations, determinations and judgment calls, and the making of such judgments will always include an element of risk. There are often no bright lines to make clear the boundaries of fair dealing, but concerns about getting too close to the line, not to mention the threat of legal action, can lead to copyright anxiety and chill. The legacy of this long legal battle, which has resulted in a positive outcome for the post-secondary sector, must not be a more guarded institutional approach to the use of fair dealing. For institutions to choose not to exercise their fair dealing rights to the fullest would be disruptive to the balance of rights that is the foundation of copyright law.
For additional information about copyright at the University of Alberta, or to arrange an information session for your department or faculty, check out the Copyright Office website, or email the help desk.
