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Access Copyright v. York

*July 2020

This instructional module is not intended as legal advice. All Opening Up Copyright modules are made available under a Creative Commons Attribution 4.0 (CC-BY-4.0) International license.

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A DECADE IN THE MAKING

2010

2020

2012

2017

2013

Access Copyright v. York

Decision

York v. Access Copyright

Decision

Case filed against York

Copyright Pentalogy

Interim tariff

proposed

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TWO MAIN ISSUES

Are tariffs mandatory?

1.

Were York’s fair dealing guidelines fair?

2.

Tariff

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COLLECTIVE LICENSING AGENCIES

©

Tariff

The Copyright Board

Authors and copyright owners can choose to have licences to their works managed by collective licensing agencies, or collectives, like Access Copyright. Access Copyright manages the copying of the literary works in its repertoire. Educational institutions can choose to enter into agreements with collectives like Access Copyright in order to cover routine copying of those works in their institutions according to formulas agreed on by both parties. When disagreements arise around the terms and conditions of a licensing agreement, the collective can apply to the Copyright Board to address the situation with a tariff. And if that doesn’t work… well, you sue the other party. In this case - spoiler alert - it didn’t work. At the core of the issue is differing views of how, when, and for whom the tariff (or interim tariff) is binding.

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2010: A NEW TARIFF

Tariff

$ 3.38

$ 45

Or $35 (colleges)

Scan

Print

Store

Display

Send a link

Considered ‘making a copy’ according to the proposed tariff

If you:

2010

�In March of 2010, Access Copyright proposed a new tariff for its client universities and colleges with the Copyright Board. If approved, Access Copyright would be allowed to include this rate in their licence agreements. The new tariff was a considerable increase over the previous agreements. They wanted to move from an agreement where institutions paid $3.38 fee per full time enrolled student with additional fees per page copied, to a proposed $45 per full time student for universities, or a $35 fee for colleges, without the additional fee per page copied. For universities like York, this would mean a significant increase in fees. Beyond the massive increase in fees, the proposed tariff created other concerns for colleges and universities. Particularly, this tariff intended to expand into the area of digital licensing, meaning that if you scan, print, store, display or send a link to a work, this would be considered making a ‘copy.’ Additionally, the new tariff contained numerous audit, reporting, and monitoring provisions that would place new burdens on the institutions, their staff and their instructors. (D’Alton, 2012)�

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2011: THE INTERIM TARIFF

InterimTariff

✓

WE’RE GOOD.

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2011: OPTING OUT OF LICENCE AGREEMENTS

s. 29

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2012: THE COPYRIGHT PENTALOGY

ESAC v. SOCAN

Alberta (Education) v. Access Copyright

SOCAN v. Bell

Rogers v. SOCAN

Re:Sound v. MPTAC

WE’RE STILL GOOD.

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TRA-LA-LA-LA-LA

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2013: ACCESS FILES THE LAWSUIT

TARIFF IS MANDATORY!

NO INFRINGEMENT MEANS NO TARIFF!

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TWO MAIN ISSUES

Are tariffs mandatory?

1.

Were York’s fair dealing guidelines fair?

2.

Tariff

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2017: FEDERAL COURT DECISION

Federal Court of Canada

Are tariffs mandatory?

1.

Were York’s fair dealing guidelines fair?

2.

✓

✘

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2017: FAIR DEALING DECISION

Purpose

✘

✓

CONSIDER THE LIKELY IMPACTS THO.

Federal Court of Canada

OKAY!

Starting with the fair dealing assessment - The judge in this case, Justice Michael Phelan, found that the fair dealing guidelines outlined by York did not pass the six-factor test for assessing whether a dealing is fair.

It should be noted that the application of the six-factor test by the judge in this case has been criticised for contradicting past jurisprudence around applying the six factors. When assessing the ‘purpose of the dealing’ Justice Phelan determined that there are two ‘users’ to consider.the university and the students .*I cut here* This interpretation ignored the determination of past supreme court cases that the only relevant perspective when considering whether the dealing is for an allowable purpose is that of the end user - the students. (CCH, at paras. 48 and 64 - via Geist 2017).

While the ‘alternatives to the dealing factor’ was ruled to be more fair in favour of York *cut * Justice Phelan leaned heavily on the ‘effect of the dealing’ factor in making his final ruling. He agreed with the argument made by Access Copyright that the Court should consider all actual and likely financial impacts of the copying. In past fair dealing cases the Supreme Court had not considered ‘likely’ impacts of copying that could not be substantiated with evidence.

For these reasons, Justice Phelan sided with Access Copyright.

�

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2017: MANDATORY TARIFF DECISION

‘Tariff’ = a fee that automatically applies to people or institutions. (whether or not they signed a licence agreement)

Interim

Tariff

✓

Federal Court of Canada

The Copyright Act doesn’t define ‘tariff.’

The Act does define the nature of the particular tariffs relevant in this case.

‘Tariff’ = a fee that, once approved, can be included in licences

(it does not automatically apply to everyone)

s. 70.13

2017 - Mandatory Tariff Decision

As mentioned previously the Judge in this case sided with the collective on the other main issue as well, determining that the tariff proposed by Access should indeed be mandatory for York to pay. Both Access Copyright and the judge interpreted a ‘tariff’ as a fee that is imposed for a service and that automatically applies to anyone who does an action that falls under the agreement- whether they have agreed to that licence or not. The court also noted that the Copyright Act does not define the word ‘tariff’ and so it relied on other common definitions of the word. In responding to this decision Professor Ariel Katz pointed out that the court failed to notice that while the Act does define the word ‘tariff’ itself, it clearly defines the nature of the particular tariffs relevant in this case. Katz argued that a proposed tariff sets out the terms and conditions under which Access Copyright is able to issue licences but these terms do not automatically apply to non-licensees.

Because of criticism like this there was substantial push back following this ruling made by the Federal Court and it was no surprise that York appealed this decision on both grounds - the fairness of its guidelines and whether the tariff was mandatory.

�

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2020 APPEAL: MANDATORY TARIFF DECISION

Federal Court of Appeal

Are tariffs mandatory?

✘

Federal Court of Canada

Are tariffs mandatory?

✓

“An individual cannot acquire a licence without the consent of the copyright owner and a copyright owner cannot impose financial or other terms, on a person who has not agreed to become a licensee” (para. 53-54).

©

“There is no grant of power to the Board to make or establish tariffs by regulation”(para. 149).

s. 29

�2020- Mandatory Tariffs

�The Federal Court of Appeal reached its decision in the appeal of this case in April 2020. On the mandatory tariff issue, the Court overturned the decision of the court in 2017 ruling and found that tariffs are not mandatory.

�The court determined that “An individual cannot acquire a licence without the consent of the copyright owner and a copyright owner cannot impose financial or other terms, on a person who has not agreed to become a licensee.(para 53-54 p.19-20) Instead, if copyright is infringed the copyright owner can choose to make an action for damages against those who are infringing on their rights.

The court went on to say that “There is no grant of power to the Board to make or establish tariffs by regulation” (para 149 p. 54).

This decision was a welcome result for the post-secondary community, as it allows institutions the freedom to choose from a range of possible approaches and licensing options to remain copyright compliant (Sheppard, 2020).

�

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2020 APPEAL: FAIR DEALING DECISION

Federal Court of Appeal

“York’s guidelines did not attempt to forestall downstream copying and redistribution by students” (para. 256).

In terms of the fair dealing aspect of the case the Federal Court of Appeal found that York did not show “that the Federal Court erred in law in its understanding of the relevant factors.” Thus the claim by York that the court had in the first decision misinterpreted fair dealing was dismissed.

The court also pointed out that, as the copier, it was incumbent on York to make sure that its guidelines were implemented according to their stated intention, but the Federal Court had found that safeguards were virtually absent and that this undermined York’s claim to fair dealing and tended to show unfairness in their copying (para 239). The court also noted that “York’s Guidelines did not attempt to forestall downstream copying and redistribution by students” (para 256). These statements by the court will likely shape the way that educational institutions develop and communicate their fair dealing policies in the future. Some have pointed out that the court’s examination of the fair dealing issue did not include a thorough historical reflection in the way that it had when it reviewed the mandatory tariff issue.

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2020 APPEAL DECISION

Federal Court of Appeal

Are tariffs mandatory?

1.

Were York’s fair dealing guidelines fair?

2.

✘

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GOING FORWARD

Recommendation 16: That the Government of Canada consider establishing facilitation between the educational sector and the copyright (INDU 2019, p.65)

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AN UPDATE? IN THIS ECONOMY?

And now . . .

for an update!

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YORK UNIVERSITY V. ACCESS COPYRIGHT

I’m listening . . .

The Supreme Court of Canada

A-ha!

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TARIFFS: MANDATORY OR NOT?

Tariff

NOT BINDING

Mandatory?

Voluntary?

Voluntary!

�

Federal Court of Appeal

�

The Supreme Court of Canada

Federal Court of Appeal

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TARIFFS: MANDATORY OR NOT?

NOT REQUIRED

Tariff?

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TARIFFS: MANDATORY OR NOT?

Tariff?

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ARE FAIR DEALING GUIDELINES FAIR?

Tariff

NOT ADDRESSED

Fair?

NOT NECESSARY

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ERRORS IN FAIR DEALING ANALYSIS?

Purpose

Fair?

Balanced?

Applicable?

“Not our jurisprudence!”

“Do we have this right?”

“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).”

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CONSIDER BOTH PERSPECTIVES

Purpose

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SCC SUPPORTS USER RIGHTS

Remember to consider my perspective!

Purpose

We need to keep things consistent!

I think it’s consistent now!

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END OF THE SAGA

The end?

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LEARNING OBJECTIVES

You should now be able to:

Understand the debate around mandatory tariffs in this case and how this was interpreted by the courts

Describe how the fairness of York’s fair dealing guidelines were assessed in this case

Recognize the implications of this decision for educational institutions and collective licensing agencies

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THANK YOU FOR YOUR ATTENTION

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QUESTIONS

In the 2017 decision, Justice Phelan agreed with Access Copyright that ‘tariff’ meant a fee that is imposed for a service and that it automatically applies to anyone who does an action that is outlined in the terms of the tariff agreement.

True
False�

Given that the Federal Court of Appeal stated that it is incumbent on York, as the copier, to ensure that its guidelines are implemented, educational institutions should review and evaluate how they develop and communicate their fair dealing policies in the future.�a. True�b. False

�

In 2020 the Federal Court of Appeal overturned the mandatory tariff decision, made in 2017, when it determined that:

“There is no grant of power to the Board to make or establish tariffs by regulation.”
“Tariffs are not defined in the Copyright Act.”
“Educational institutions can rely on fair dealing so even if a tariff was mandatory York did not infringe copyright.”
“There is no reason to impose tariffs because nobody even reads anymore. These dang kids with their Netflix...”

�

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QUESTIONS

�In the 2017 decision the Federal Court of Canada controversially determined that:

York’s fair dealing guidelines did not pass the Six-factor Fair Dealing Test
When considering the Effect of The Dealing on the Work factor the court should consider actual and likely financial impacts of the copying
Both the perspective of the educational institutions and end-users (students) are relevant when considering if a dealing is for an allowable purpose under fair dealing
All of the above

�

�What did the Supreme Court consider to be the main error with the Federal Court of Appeal’s fair dealing analysis?

They failed to note that York was copying beyond 10% of source material
They did not consider that students can do their own copying
The Appeals Court used the Calibri typeface instead of Times New Roman in their decision
The Appeals Court only considered one perspective: the institution’s, when the student’s perspective should also be considered

Fill in the year. �In the 2017 decision the court found that tariffs were mandatory and that York's guidelines were not fair. In the 2020 decision the court found that tariffs were not mandatory and that York's guidelines were not fair. In 2021 the Supreme Court of Canada released its decision which confirmed that tariffs were not mandatory, and no retroactive payments would be made.

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D'Alton, L. J. (2012). A critical historical analysis of the public performance right. [Doctoral dissertation, University of Western Ontario]. Electronic Thesis and Dissertation Repository. 442. https://ir.lib.uwo.ca/etd/442

Geist, M. (2011). Access Copyright: It’s “virtually impossible” to opt-out of tariff. [blog post]. https://www.michaelgeist.ca/2011/07/access-copyright-on-interim-tariff/

Geist, M. (2017). Ignoring the Supreme Court: Federal Court judge hands Access Copyright fair dealing victory. [blog post]. https://www.michaelgeist.ca/2017/07/ignoring-supreme-court-trial-judge-hands-access-copyright-fair-dealing-victory/ (this focuses on the weaknesses and inconsistencies of the fair dealing assessment in the initial 2017 federal court case)

Geist, M. (2020). Federal Court of Appeal deals Access Copyright huge blow as it overturns York University copyright decision. [blog post]. https://www.michaelgeist.ca/2020/04/federal-court-of-appeal-deals-access-copyright-huge-blow-as-it-overturns-york-university-copyright-decision/

�

REFERENCES AND RESOURCES

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House of Commons Standing Committee on Industry, Science and Technology. (2019). Statutory review of the Copyright Act. https://www.ourcommons.ca/Content/Committee/421/INDU/Reports/RP10537003/indurp16/indurp16-e.pdf

Katz, A. (2017). Access Copyright v. York University: Anatomy of a predictable but avoidable loss. [blog post]. https://arielkatz.org/access-copyright-v-york-university-anatomy-predictable-avoidable-loss/

Knopf, H. (2017). Access Copyright v. York U – And all eyes over to York U for what's next. [blog post]. https://excesscopyright.blogspot.com/2017/07/access-copyright-v-york-u-and-all-eyes_14.html

Murray, L.J., & Trosow, S. E. (2013). Canadian copyright: A citizen’s guide (2nd ed.). Between the Lines.

REFERENCES AND RESOURCES

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Nair, M. (2020). York; some initial thoughts. [blog post]. https://fairduty.wordpress.com/2020/05/06/york-some-initial-thoughts/

Owens, R. C. (2017). The court backs creators, not universities. Financial Post. https://business.financialpost.com/opinion/the-court-backs-creators-not-universities_

Sheppard, A. (2020). The York appeal and fair dealing guidelines. The Quad. https://blog.ualberta.ca/the-york-appeal-and-fair-dealing-guidelines-f6739fefe940 (this has a good breakdown of the fair dealing decision in the appeal)

Geist, M. (2021). Copyright vindication: Supreme Court confirms Access Copyright tariff not mandatory, Lower Court fair dealing analysis was “tainted”. [blog post]. https://www.michaelgeist.ca/2021/08/copyright-vindication-supreme-court-confirms-access-copyright-tariff-not-mandatory-lower-court-fair-dealing-analysis-was-tainted/

Sheppard, A. (2021). Fairness and balance: the Supreme Court of Canada decision in Access Copyright v. York University. The Quad. https://www.ualberta.ca/the-quad/2021/08/fairness-and-balance-the-supreme-court-of-canada-decision-in-access-copyright-york-university.html

REFERENCES AND RESOURCES

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Access Copyright v. York University, 2017 FCC 669. https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/232727/index.do?q=access+copyright+v+york+

York University v. Access Copyright, 2020 FCA 77. https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/469654/index.do

CASES AND LEGISLATION

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Till Teenck. (n.d.). Accept Payment. The Noun Project. CC BY. https://thenounproject.com/tillt/collection/money-money/?i=402474

Kick. (n.d.). Scales. The Noun Project. CC BY. https://thenounproject.com/search/?q=scale&i=1320645

Guilherme Fertado. (n.d.). Sign. The Noun Project. CC BY. https://thenounproject.com/search/?q=sign&i=1859815

Star and Anchor Designs. (n.d.). Building. The Noun Project. CC BY. https://thenounproject.com/search/?q=building&i=164596

AmruID. (n.d.). Account writer. The Noun Project. CC BY. https://thenounproject.com/search/?q=writer&i=2928435

Rob Crosswell. (n.d.). Library. The Noun Project. CC BY. https://thenounproject.com/crosswellrob/uploads/?i=1122689

DesignNex. (n.d.). Document. The Noun Project. CC BY. https://thenounproject.com/search/?q=copyright&i=93928

Rockicon. (n.d.). Book. The Noun Project. CC BY. https://thenounproject.com/search/?q=book&i=1573145

IMAGE AND SOUND REFERENCES

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Daria Szymonowicz. (n.d.). Essay. The Noun Project. CC BY. https://thenounproject.com/search/?q=essay&i=1353220#

Gabriela Rodríguez. (n.d.). Panel. The Noun Project. https://thenounproject.com/search/?q=panel&i=1142582

Designs by MB. (n.d.). Paper money. The Noun Project. CC BY. https://thenounproject.com/search/?q=paper%20money&i=3360185

Tatyana RU. (n.d.). Question Mark and Exclamation Mark. The Noun Project. CC BY. https://thenounproject.com/tanyasolo1986/uploads/?i=2460596

Rawpixel. (n.d.). [Isabelle]. Pixabay. https://pixabay.com/illustrations/cartoon-casual-character-drawing-3685566/

InspectorJ. (2017). Violin Glissendo Ascending. Freesound. CC BY. https://freesound.org/people/InspectorJ/sounds/411728/

Jake Dunham. (n.d.). All seeing eye. The Noun Project. CC BY. https://thenounproject.com/search/?q=all%20seeing%20eye&i=913953

IMAGE AND SOUND REFERENCES

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Aliwijaya. (n.d.). Weight. The Noun Project. CC BY. https://thenounproject.com/search/?q=weight&i=1274253

https://thenounproject.com/search/?q=content%20management&i=1575870

Logo York University. (2015). Wikimedia Commons. Public Domain. https://en.wikipedia.org/wiki/York_University#/media/File:Logo_York_University.svg

Vector Market. (n.d.). Content sharing. The Noun Project. CC BY. https://thenounproject.com/search/?q=content%20management&i=1575870

Edwin PM. (n.d.). Agreement. The Noun Project. CC BY https://thenounproject.com/search/?q=agreement%20company&i=3373812

Onathasmello. (2012). Global Open Educational Resources Logo. Wikimedia Commons. CC BY. https://commons.wikimedia.org/wiki/File:Global_Open_Educational_Resources_Logo.svg

Alexkandrel. (2012). Royal sparkle woosh left to right. Freesound. CC0. https://freesound.org/people/alexkandrell/sounds/170522/

OpenClipart-Vectors. (n.d.). [Fairy-tale land]. Pixabay. https://pixabay.com/vectors/castle-chateau-landscape-147413/

IMAGE AND SOUND REFERENCES

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OpenClipart-Vectors. (n.d.). [bird]. Pixabay. https://pixabay.com/vectors/aves-birds-flying-colors-sparrows-148952/

Czarcasis. (2015). Shattering glass. Freesound. CC BY. https:///freesound.org/people/Czarcazas/sounds/330800

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Federal Court. (n.d.). [Federal Court Coat of Arms]. Federal Court. https://www.fct-cf.gc.ca/Content/img/base/newCOA.jpg

Тимур Минвалеев, RU. (n.d.). Percent. The Noun Project. CC BY. https://thenounproject.com/search/?q=percent&i=397874

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IMAGE AND SOUND REFERENCES

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Farais, B, CL. (n.d.). Decision. The Noun Project. CC BY. https://thenounproject.com/search/?q=alternatives&i=1074053

AFY Studio, ID. (n.d.). Leaf. The Noun Project. CC BY. https://thenounproject.com/AFYstudio/uploads/?i=1737325

Gregor Cresnar. (n.d.). Dollar sign. The Noun Project. CC BY. https://thenounproject.com/search/?q=dollar%20sign&i=171145

[Photo of Ariel Katz] CC BY SA. Retrieved from: https://arielkatz.org/about

Government of Canada. (2018). Official rendition of the coat of arms of Canada. Wikimedia Commons. Converted to svg by Zscout370. Crown Copyright. Fair Use TM. https://en.wikipedia.org/wiki/Arms_of_Canada#/media/File:Coat_of_arms_of_Canada.svg

Dig deeper. (2017). [Supreme Court of Canada]. Wikimedia Commons. CC BY 4.0. https://commons.wikimedia.org/wiki/File:Supreme_court_of_Canada_in_summer.jpg

IMAGE AND SOUND REFERENCES

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Closing Slides Music: Rybak, Nazar. (n.d.). Corporate Inspired. HookSounds. CC BY. http://www.hooksounds.com

Unattributed materials are contributions from the Opening Up Copyright Project Team and placed in the Public Domain

IMAGE AND SOUND REFERENCES

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University of Alberta. (2020). Access Copyright v. York. Opening Up Copyright Instructional Module. https://sites.library.ualberta.ca/copyright/

Suggested Citation:

For the project overview and complete list of modules please visit the project website at: https://sites.library.ualberta.ca/copyright/

Questions, comments, and suggestions should be directed to: ouc@ualberta.ca

This module is made available and licensed under a Creative Commons Attribution 4.0 International Licence

LICENSING AND ATTRIBUTION

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CONTRIBUTORS

Copyright Office

School of Library and Information Studies

Adrian Sheppard

Amanda Wakaruk

Kimberley Kemmer

Lauren Bourdages

Samantha Sheplawy

Michael B. McNally

Centre for Teaching and Learning

Graeme Pate

Digital Humanities and School of Library and Information Studies

Julia Guy

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SPECIAL THANKS

The Opening Up Copyright Project would like to thank

Julia Guy

for volunteering her time and fantastic voice-work for the update portion of this module

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Opening Up Copyright modules were initially funded through the University of Alberta, Centre for Teaching and Learning’s Teaching and Learning Enhancement Fund (TLEF) with in kind contributions from the Copyright Office and the School of Library and Information Studies.

ACKNOWLEDGMENT