Discussion of York University v. Access Copyright, 2021 SCC 32

Eight years and four months after Access Copyright brought legal action against York University in the Federal Court, the Supreme Court of Canada (SCC) published their unanimous decision on the applicability of copyright tariffs. They also — although this does not count as precedent — commented yet again on the correct interpretation of the fair dealing factors in an educational context. My set of blog posts discussing the various filings and decisions can be found here.

When the SCC decision was announced, my prediction was that both appeals would be dismissed. I was correct in that, although York’s appeal was dismissed because the issue of the Fair Dealing Guidelines was moot, not because of the content of its policy.

As to Access Copyright’s argument that the tariff comes into play for any user who makes copies within its scope, regardless of whether the user has “opted in”, the SCC disagreed. Neither the text of the Copyright Act, nor its legislative intent, nor its jurisprudence, support the notion that tariffs apply automatically. If a user makes copies of a copyrighted work outside the terms of the tariff or licence or any user rights such as fair dealing, the proper legal response would be an infringement action by the copyright owner. As Access Copyright do not own the copyrights nor have exclusive licence to them, they do not have the power to initiate actions for copyright infringement.

“The preceding review of the text, legislative context, purpose and supporting jurisprudence all lead, in my respectful view, to the conclusion that s. 68.2(1)  does not make tariffs approved by the Copyright Board pursuant to s. 70.15 mandatory against users who choose not to be licensed on the approved terms.

It is of course open to Parliament to amend the Copyright Act  if and when it sees fit to make collective infringement actions more readily available. But under the existing relevant legislation in this appeal, an approved tariff is not binding against a user who does not accept a licence.” (paras. 75-76)

As to York University’s request for a declaratory judgement that their Fair Dealing Guidelines are within the scope of fair dealing, the SCC pointed out that there was no longer a “live dispute” since York are not bound by the tariff or responding to an infringement claim (para. 82).

However, while the SCC agreed with the lower courts that the declaration should not be granted, they explicitly did not endorse the reasoning, some of which they characterized as errors (para. 88). I noted some of these deficiencies in my discussions of the fair dealing analyses of the Federal Court and the Federal Court of Appeals.

The SCC did not engage in a detailed factor-by-factor examination of the lower courts’ reasoning, mainly because the issue was moot. Instead, they stated that the overreaching error in the lower courts’ analyses was to look at the fairness issue from only the institutional perspective, ignoring that the students each have a right to deal fairly with copyrighted materials. The SCC reiterated that copyright is a balance between the rights of the author (or copyright owner) and those of the user. Each set of rights contributes to the public interest, and neither should be given excessive weight. (para. 93)

While the institutional purpose is relevant to the first factor of the fair dealing analysis, by taking the view that it is paramount, the lower courts underplayed the rights of the students. This error was then perpetuated in the view that the aggregate use of the works predominated over the individual use in the analysis of the third factor, the amount of the dealing. This interpretation goes directly against the SCC’s rulings in the Copyright Pentalogy (in particular SOCAN v. Bell and Alberta (Education) v. Access Copyright).

In the end, we did not find out the Supreme Court’s view on the Fair Dealing Guidelines that are used by a number of universities. However, we did get to hear, yet again, how not to go about a fair dealing analysis, and that even after the nearly 20 years since Théberge v. Galerie d’Art du Petit Champlain, the 18 years since CCH v. Law Society of Upper Canada, and the shift from physical photocopies to digital distribution of course readings, the notion of copyright as a balance between the rights of authors and the rights of users is as important as ever.

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