Access Copyright is now calling on the federal government to “remedy the untenable situation” of Canadian creators by reforming the Copyright Act.

The multi-year legal dispute between York University and Access Copyright ended on July 30 with a unanimous judgment from the Supreme Court of Canada. In a victory for York, the Supreme Court upheld an earlier ruling that stated that copyright tariffs imposed by Access Copyright, a non-profit organization that collects and distributes royalties for Canadian authors and publishers, are not mandatory for post-secondary institutions that choose not to have a licensing agreement with the organization.

The Supreme Court also declined to rule on the York Fair Dealing Guidelines (an exemption to copyright infringement in the Copyright Act that applies under certain conditions, including research, satire, reporting and, since 2012, education) because she did not believe Access Copyright had standing for a ruling on this aspect of the case. Instead, the Supreme Court has said it does not approve of previous Federal Court and Federal Court of Appeal rulings that have ruled against York’s fair use guidelines.

Almost a decade of litigation

The case began in 2013 when Access Copyright sued York in Federal Court in an attempt to force the university to pay interim tariffs on works copied from its repertoire. York and Access Copyright had a licensing agreement between 1994 and 2010, but when the copyright collective increased its licensing fees, the two were unable to negotiate another agreement in 2011. Access Copyright then put in place an interim tariff, which had been approved by the Copyright Board. from Canada. York paid the tariff for a short time, but ultimately chose not to navigate copyright alone with other licenses, subscriptions, and open access content.

The Federal Court sided with Access Copyright, ruling that the university owed the organization royalties and that its pricing regime was mandatory and enforceable. The case then went to the Federal Court of Appeal, which ruled in 2020 that the rates were not applicable, but that York was also not justified in its fair use guidelines. This prompted Access Copyright to file an application for leave to appeal the Federal Court of Appeal’s decision to the Supreme Court.

In a press release following the Supreme Court ruling, York said it was pleased the court affirmed the “voluntary nature of the tariff and the ability of educational institutions to obtain licensing agreements. other sources. This confirms the flexibility of universities in their management of copyright. The court also “reinforced that fair use remains crucial for the realization of users’ rights in education,” the university said, adding that it had designed its fair use guidelines to reflect the need for an appropriate balance between the rights of the copyright owner and the ability of users to pursue research, studies and studies.

Sensation of relief for universities

“The fact that the tariffs are not compulsory [is] a real burden on our shoulders, ”said Sam Trosow, professor in the Faculties of Information and Media Studies and Law at Western University. If the Supreme Court had made a different ruling, it “would have been an absolute disaster” and would have forced universities to limit their use of fair dealing or risk retaliation from Access Copyright, he said. suggested. “I think that really scared a lot of people. “

The hearing of the case in May was the last for retired Supreme Court Judge Rosalie Abella, who is seen as a key player in strengthening user rights in Canadian copyright law and copyright law. development of the country’s fair use legal system. Ms Trosow suggested that her role in the ruling, released 30 days after her retirement on July 1, was a “last farewell gift” to universities over the fair use exemption from the Copyright Act. “She really wanted to make it clear that her legacy was making campuses feel comfortable with the expanded doctrine of fair dealing.”

The ability for post-secondary institutions to expand their use of fair dealing is the big takeaway from the legal dispute between York and Access Copyright, Dr Trosow said. “What does this mean for Canadian colleges and universities? It really is time for us to reassess and revisit our copyright and fair use policies on campus and ask ourselves, “Could this be extended? “”

Should the federal government get involved?

In response to the Supreme Court ruling, Access Copyright called on the federal government to “remedy the untenable situation creators find themselves in as a result of the court ruling.” In a statement, the organization said that after nearly 10 years of litigation, Canadian creators “are still fighting for fair compensation” from the education sector.

“Educational institutions should lead by example by respecting the work of others by fairly compensating creators for the use of their work,” said Roanie Levy, president and CEO of the copyright collective. “There are no winners with [the] Supreme Court ruling: We will all have fewer stories that speak directly to us as Canadians and relate our shared reality. “

Other organizations, including the Association of Canadian Publishers and the Writer’s Union of Canada, echoed Access Copyright’s statement, urging the federal government to get involved in reforming the Copyright Act. author. However, Mr Trosow hopes that instead of pushing Parliament to change the law, Access Copyright will ask how it can better provide services to its university clients. He added that tabling the Copyright Act in Parliament would put a target on the back of the fair dealing exemption and force universities to convince parliamentary committees “that no, we are not trying. to get everything for free ”.

The works represented by Access Copyright and other publishing and writing organizations are not considered readings in college courses as much as those organizations suggest, Dr Trosow said. “When university professors assign readings to students, most… what is assigned to them is academic work that was written for other academics,” he argued. Of course, there are exceptions in fields like literature and poetry, but “as an academic, as a professor of law, what is my motivation? My motivation is not to get, instead of maybe $ 20 a year, $ 700 a year from Access Copyright. My motivation is for people to read my articles and quote them.


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