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.Continue reading
The Supreme Court decision in the Access Copyright / York case has been released. It can be found at Lexum.
As I had suspected, the Court dismissed the appeals of both parties and upheld the verdicts of the Federal Court of Appeal – namely, that the tariff proposed by Access Copyright and set by the Copyright Board is not automatically binding on all institutional users of copyrighted material, and thus, since the tariff is not binding, there is no need at this time to make a declaration that York’s Fair Dealing Guidelines are representative of fair dealing.
However, while the guidelines issue is moot, the Supreme Court took issue with how the Federal Court and Federal Court of Appeal described and interpreted fair dealing in the institutional context. While the Court’s statements on this is issue are “obiter dicta”, they are nonetheless important.
“While I therefore agree that the requested Declaration should not be granted, this should not be construed as endorsing the reasoning of the Federal Court and Federal Court of Appeal on the fair dealing issue. There are some significant jurisprudential problems with those aspects of their judgments that warrant comment.” (para. 87)
I will discuss the Supreme Court’s decision in more detail in my next post.
The Supreme Court of Canada are publishing their decision on the Access Copyright v. York University copyright case on Friday, July 29. I’ve been following this case and writing about it on my blog since the action was filed eight (!) years ago: see https://fairdealingineducation.com/tag/york-university/
Considering the decision is coming only two months and some days after the hearing, I expect the SCC will uphold the verdicts of the Federal Court of Appeals that the tariff is not mandatory, and that York’s Fair Dealing policy does not accurately reflect the interpretation of fair dealing that the SCC has previously put forth. Maybe they will add a bit of commentary of their own, I don’t know. But I don’t think we’re going to be falling out of our chairs.
Michael Geist’s analysis of the FCA’s decision is here.
In summary, the FCA ruled that the interim tariff requested by Access Copyright, and granted by the Copyright Board, is not mandatory; and that copies made under York’s fair dealing guidelines (“Guidelines”) are not necessarily fair dealing. (para. 4) Continue reading
The Federal Court of Appeals has released its decision in the appeal of the Access Copyright v. York case. Howard Knopf has helpfully provided links to the order and reasons in his blog Excess Copyright.
Long story short: The interim tariff is not mandatory, but York’s fair dealing guidelines cannot be declared as representative of fair dealing.
A more in-depth discussion of the decision will be posted on this blog sometime during the week.
Here is Michael Geist’s post on the decision.
Updated: May 21, 2019
This is a 2019 update to the last post from February 2016. It’s been nearly two years since the Federal Court handed down its decision in Access Copyright v. York University (July 12, 2017), ruling that York must pay royalties for its use of copyrighted materials, and that the school’s fair dealing guidelines were neither reliable nor representative of the fair dealing exception. York have appealed the decision to the Federal Court of Appeals, which heard arguments on March 5 and 6, 2019.
While the decision only applies to York, other Canadian universities have been paying close attention. One might expect that schools would flock (back) to Access Copyright to save themselves from a similar lawsuit, but it looks like that hasn’t been the case. No university has entered into an Access Copyright license that was not already subscribing to the service. A few – Dalhousie, Lakehead, Regina, and Trent – did not renew their licenses that in 2016.
Overall, the proportion of universities that do not have a blanket license with Access Copyright increased from 37.5% in 2015, to (at least) 57.8% in 2016, to 76.2% in 2019. Conversely, the proportion of universities that have entered into a license decreased from 59.4% in 2015 to 19% in 2019.
Michael Geist has been writing a series of articles on misleading claims about fair dealing made by various copyright stakeholders over the past few months. I highly recommend reading all of them, as they give a comprehensive overview of the attempts of copyright maximalists to erode the rights of users as recognized by the Supreme Court.
- Misleading on Fair Dealing, Part 1: Access Copyright’s Inconsistent Claims on the Legal Effect of the 2012 Fair Dealing Reforms (11/19/18)
- Misleading on Fair Dealing, Part 2: Why Access Copyright’s Claim of 600 Million Uncompensated Copies Doesn’t Add Up (11/20/18)
- Misleading on Fair Dealing, Part 3: Data Shows Books Are Rapidly Declining as Part of Coursepack Materials (11/21/18)
- Misleading on Fair Dealing, Part 4: The Shift from Coursepacks to Digital Course Management Systems (11/22/18)
- Misleading on Fair Dealing, Part 5: The Multi-Million Dollar Educational Investment in E-Book Licensing (11/23/18)
- Misleading on Fair Dealing, Part 6: Why Site Licences Offer Education More than the Access Copyright Licence (11/27/18)
- Misleading on Fair Dealing, Part 7: My Appearance Before the Standing Committee on Canadian Heritage (11/28/18)
- Misleading on Fair Dealing, Part 8: The Access Copyright Fight Against Transactional Licensing (11/29/18)
- Misleading on Fair Dealing, Part 9: The Remarkable Growth of Free and Open Materials (11/30/18)
- Misleading on Fair Dealing, Part 10: Rejecting Access Copyright’s Demand to Force Its Licence on Canadian Education (12/3/18)
Author’s note: The Access Copyright v. York University lawsuit was the subject of the very first post I ever made. In fact, it was the impetus for creating this blog. After four years, part one of the lawsuit has been decided. Here is my analysis.
On July 12, 2017, the Federal Court of Canada handed down its long-awaited decision in Access Copyright’s lawsuit against York University (York), originally filed on April 13, 2013. The suit related to York’s copyright policy and whether their fair dealing guidelines accurately reflected the test set out by the Supreme Court. A summary of Access Copyright’s claims can be found here.
The result was a complete loss for York on all points, and an order to pay retroactive royalties as set by the Copyright Board in its Interim Tariff. However, as the decision is likely to be appealed, I’d like to discuss here what will we be (or should be) the main points of legal contention before the higher court. I will focus here on the fair dealing analysis (starting at para. 249) rather than the mandatory tariff, which is an issue discussed in detail by Howard Knopf and Ariel Katz.
Access Copyright is now offering two licensing options for universities to consider: the Access Premium, which takes the same form as the pre-2015 blanket licences including course packs and digital copying, and transactional licences for over-limit copying; and the Access Choice, which starts at a lower flat rate and adds on transactional licences for course packs and digital copyright. (Still no stand-alone pay-per-use option, however.)
The flat fee for each of the options is reduced if the licence term is longer. For Premium, a one-year commitment requires a fee of $18 per full-time-equivalent (FTE) student, which then drops to $15/year for a three-year agreement, and $12/year for a five-year agreement. The Choice option starts at $6/FTE for a one-year agreement, then drops to $5/year for a three-year agreement. (The previous agreement was $26/year.)
The addition of transactional licences to the scheme might be attractive to some university administrators who perceive it to offer some security. However, it doesn’t seem to be attractive enough. December 31, 2015, marked the end of the latest round of Access Copyright licences. I have been keeping track of whether the signatory universities were planning to continue with a further Access Copyright agreement. The results so far show that universities are continuing to move away from the blanket licence model, even with the lower price and option of transactional licences; more and more universities are opting to rely on fair dealing and other user rights, publisher and database licences, open access alternatives, and public domain material.
As of today, according to publicly-accessible sources, 37 out of 65 universities (57%) are not a party to a licensing agreement with the collective (compared to 24/65 [37%] last year, and 100% in 2010). For 27 universities, their status is unclear, but evidence suggests that two of them have decided not to renew. The University of Regina decided to opt into an Access Premium agreement.
Updated: February 8, 2016
The time has passed for universities to decide whether they will renew their collective licences with Access Copyright. Below is a table (after the jump) I will use to keep track of the decisions once they become public. The table includes all of the universities that are members of Universities Canada (formerly AUCC). This table only shows whether they’ve renewed the current licence, but does not indicate if they are in negotiations for a new one. Continue reading