On April 8, 2013, Access Copyright brought legal action in Federal Court against York University. Access Copyright claims that York is impermissibly operating outside the Access Copyright Interim Post-Secondary Educational Institutions Tariff, 2011-2013 (PDF, 137 KB).
Access Copyright is a collective that represents copyright owners throughout Canada except for Quebec. The collective negotiates copyright licences and collects royalty payments on behalf of the owners. Until the end of 2010, Canadian universities (except those in Quebec) had licences to reproduce certain amounts of certain works (where the copyright owner is represented by Access Copyright).
The Interim Tariff sought by Access Copyright had been approved by the Copyright Board on December 23, 2010, following the inability of the copyright collective and the universities to agree on a new licence.
On September 1, 2013, York decided to “opt out” of the Interim Tariff; they would, instead, rely on licences negotiated directly with publishers, transactional licences (pay-per-use), publicly-licenced content (e.g. Creative Commons), open access content, and fair dealing. Fair dealing is an “exception” to copyright infringement, found in ss. 29-29.2 of the Copyright Act. If the dealing (reproduction) is for the purpose of research, private study, education, parody or satire, and the dealing is fair, it does not infringe copyright, and no permission from or payment to the copyright owner is required. The Copyright Act does not include a definition of “fair”. The Supreme Court, in its landmark 2004 decision CCH Canadian Ltd. v. Law Society of Upper Canada, constructed (interpreted) the concept to encompass six factors within an analytic framework to determine whether a particular dealing is fair: the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing, and the effect of the dealing on the work. The Court, notably, characterized fair dealing as a “user’s right” that must not be interpreted restrictively, so that the balance essential to the purposes of copyright law is maintained.
Fair dealing was again considered in the “Copyright Pentalogy”, a series of five Supreme Court decisions rendered on July 12, 2012. In two of these decisions — Alberta (Education) v. Access Copyright and SOCAN v. Bell — the Court reiterated the six factors of fairness and the notion of a “user’s right”.
Following the Copyright Pentalogy and the amendment of the Copyright Act to include “education, parody, and satire” as enumerated purposes, many universities opted out of a relationship with Access Copyright (whether via agreement or via tariff) and generated fair dealing policies to guide their educators through the (from the educators’ point of view) vague and confusing world of copyright and its exceptions. These policies are also, it must be said, intended to serve as evidence of “good faith” and “due diligence” (or at least a reasonable attempt at preventing unbridled reproduction) in the face of just such a legal action as has arisen.
Nonetheless, Access Copyright asserts in its recent action that York’s Fair Dealing Guidelines are “arbitrary and purely mathematical” in scope, and in any event do not allow for effective enforcement. In other words, the guidelines do not stop users from making copies that they are not permitted to do under the Copyright Act and its judicial interpretations. Essentially, the issue is whether York educators’ dealing with the works in Access Copyright’s repertoire is indeed fair as per the Copyright Act and the Supreme Court’s 2004 and 2012 decisions. Simply put, is the defendant making or authorizing the making of “non-exempted reproductions” of works in Access Copyright’s repertoire?
In fact, the issue is even narrower: did one educator make such a non-exempted reproduction? If the answer to that question is “yes”, then, Access Copyright claims, the school is liable for all royalty payments in accordance with the Interim Tariff retroactive to September 1, 2011, along with pre- and post-judgment interest. Schedule “B” of the claim lists the works that, according to Access Copyright, have been reproduced outside of the scope of fair dealing and thus trigger the school’s royalty obligations under the Tariff.
In the next post I will summarize the precise claims being made in the action.
 Although, as Ariel Katz points out in his paper “Fair Use 2.0“, the wording of s. 29 of the Copyright Act is seemingly paradoxical as it suggests that the dealing must already be considered “fair” before the purposes are considered: “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.” (p. 20) Yet one of the six “fairness” factors in CCH is the purpose of the dealing.
 Giuseppina D’Agostino suggests that consistent, industry-wide fair dealing best practices are a “promising alternative or complement to legislative reform.” (“Healing Fair Dealing” (2008), McGill Law Journal 53) For an interesting discussion of fair use guidelines in the American context, see Kenneth Crews’ “The Law of Fair Use and the Illusion of Fair Use Guidelines” (2001), Ohio State Law Journal 62(2).