| Case-Name: | York University v Canadian Copyright Licensing Agency (Access Copyright) |
| Full-Case-Name: | York University v Canadian Copyright Licensing Agency (“Access Copyright”) |
| Heard-Date: | 21 May 2021 |
| Decided-Date: | 30 July 2021 |
| Citations: | 2021 SCC 32 |
| Docket: | 39222 |
| History: | APPEALS from York University v The Canadian Copyright Licensing Agency (Access Copyright). 2020. fca. 77. 2020-04-22., setting aside in part Canadian Copyright Licensing Agency v York University. 2017. fct. 669. [2018] 2 FCR 43. 2017-07-12. . Leave to appeal granted, York University et al v Canadian Copyright Licensing Agency ("Access Copyright") et al. 2020. scc-l. 76224. canlii. 2020-10-15. . |
| Ruling: | Appeals dismissed. |
| Scc: | 2019-2021 |
| Unanimous: | Abella J |
| Lawsapplied: | Copyright Act |
York University v Canadian Copyright Licensing Agency (Access Copyright). 2021. scc. 32. is a major decision of the Supreme Court of Canada in the matters of the effectiveness of copyright collectives and of fair dealing in Canadian copyright law.
Ever since the 2004 judgment of the SCC in CCH Canadian Ltd v Law Society of Upper Canada,[1] many institutional users have sought to simplify the process of determining what constitutes fair dealing through the adoption of guidelines quantifying what amounts of a work may be acceptable.[2] [3]
When the copyright collective Access Copyright sought to enforce an Interim Tariff in December 2010 that had been approved by the Copyright Board of Canada, York University asserted that any copying it did fell outside the tariff's scope under the Fair Dealing Guidelines it had issued to define its position. In relevant part, the Guidelines stated:
Access Copyright sued York University with respect to royalties due under the Interim Tariff, while York counterclaimed for a declaration stating that its Guidelines were lawful under s. 29 of the Copyright Act.[4]
In a decision released in July 2017, the Federal Court of Canada concluded that Access Copyright was entitled to the royalties as stated in the Interim Tariff, and that the York University fair dealing guidelines were not fair.[5]
The Court held that a tariff (whether interim or final) is a form of subordinate legislation that is mandatory and binding on all persons, and that there is no ability to opt out of it. "If York did not copy any works in Access’s repertoire, if it obtained proper permission to copy those works, or if the copying was exempt by law – the fair dealing defence and counterclaim – then the tariff would not be applicable. Absent these conditions, the tariff is mandatory."[6]
In that decision, emphasis was given to the fact that the CCH six-factor test was the second part of a two-stage analysis in which a user must first identify whether a use was allowed before then assessing whether dealing is fair, and stressed that users must not conflate the two stages.[7] As to the first step:
Turning to the second step of the analysis:
| Factor | Criteria | Analysis of York's actions | The factors as determined in this case | ||
|---|---|---|---|---|---|
| Fair | Unfair | ||||
| Purpose of the dealing | "The goal of the dealing was multifaceted. Education was a principal goal, specifically education for end user. But the goal of the dealing was also, from York’s perspective, to keep enrolment up by keeping student costs down and to use whatever savings there may be in other parts of the university’s operation."[11] | Not a strong factor | |||
| Character of the dealing |
| "...recognizing some of the limitations in the data, it is appropriate to view the copies in total despite York’s argument that this approach disadvantages large institutions. It is York’s practices that are at issue and it is its data that is raising the issue."[14] | |||
| Amount of the dealing |
| "The unfairness evident in this part of the six-factor exercise is compounded by the absence of any meaningful control over the portions of publications copied or any monitoring of compliance, be it pre- or post-copying, which also serves to render the thresholds largely meaningless."[18] | |||
| Alternatives to the dealing | "While as a general principle this factor favours York and its asserted fairness, the level of fairness is diminished because York has not actively engaged in the consideration or use of alternatives which exist or are in development.... There are alternatives – these include using custom book services, purchasing individual chapters or articles from the publisher, or purchasing more of the necessary books and articles. There is just no reasonable free alternative to copying."[21] | ||||
| Nature of the work |
| "Aside from the dependency or reliance on income from writing and publishing, the notion of the benefits of dissemination must be carefully considered. The Guidelines are not established to motivate dissemination. There is no evidence that these professional writers and publishers need the Guidelines to assist in the dissemination of their works. Dissemination may improve because under the Guidelines the works are free, but the same can be said of any goods or services that are provided for free."[23] | |||
| Effect of the dealing on the work | "... since the introduction of the Guidelines, there has been an acceleration of the decline in the sale of works produced for the post-secondary educational market and a transfer of wealth from content producers to content users. He stated that 'the magnitude of the overall impact [of dealing in a work] is indicative of the significance of the impact on individual works'."[26] | ||||
The University's appeal to the Federal Court of Appeal was allowed in part in April 2020.[27]
Access Copyright's tariff was held not to be of a mandatory nature, as "tariffs do not bind non-licensees".[28] This arose from an analysis of the legislative history concerning copyright tariffs in Canada:
Canadian jurisprudence has subsequently defined the nature and scope of tariffs:
York's counterclaim with respect to the Federal Court's fair dealing analysis was dismissed "on the basis that its Guidelines do not ensure that copying which comes within their terms is fair dealing",[31] noting that "York has not shown that the Federal Court erred in law in its understanding of the relevant factors or that it fell into palpable and overriding error in applying them to the facts."[32]
The decision was described as "jurisprudential analysis of a high order", and several consequences therefrom were noted as possible:[33]
It was also pointed out that institutions will not be able to plead a defence of fair dealing based solely on published guidelines, without providing evidence that there are other practices and safeguards to demonstrate the policy was followed, and that copying was actually done for an allowable purpose.[34]
In October 2020, the Supreme Court of Canada granted both parties leave to appeal.[35] [36]
Access Copyright's appeal was dismissed with costs. York's appeal was dismissed without costs.[37]
There was agreement with the Federal Court of Appeal that the tariff is not enforceable against York University.[38] It was also pointed out that the way Access Copyright's operations were structured did not enable it to pursue infringement proceedings on behalf of its members. "Nothing compels Access Copyright and its members to operate this way."[39]
Drawing upon its reasoning in Daniels v Canada (Indian Affairs and Northern Development), the Court recalled, "The party seeking [declatory] relief must establish that the court has jurisdiction to hear the issue, that the question is real and not theoretical, and that the party raising the issue has a genuine interest in its resolution." Because the tariff in question was unenforceable, there was thus no live dispute. As this was not an action for infringement, the defence of fair dealing did not need to arise.[40] However, the Court found the reasoning of the lower courts flawed in this matter, as it "approached the analysis from an institutional perspective only, leaving out the perspective of the students who use the materials. Both perspectives should be taken into account."[41]
York University subsequent released a statement, in which it asserted that its Guidelines had already addressed the concerns concerning students' rights expressed in the Supreme Court decision.[42] In its statement, Access Copyright pointed out that the economic harm had been proven in court and the Supreme Court had refused to endorse York's Guidelines, and also called on the federal government to enable collectives to pursue enforcement measures more effectively.[43] That sentiment was supported by Copibec and other Quebec publishing organizations, who stated, "We can only applaud the Supreme Court’s refusal to endorse the abusive interpretations of York University and other universities wishing to reproduce works on a massive scale without compensating rights holders."[44]
Concerns were also expressed that the movement towards guidelines that address the user rights of both institutions and students would probably take years because of further resulting litigation, and political intervention may yet be necessary.[45] In Quebec, Université Laval had attempted similar tactics in the matter to York's, but had reached an out-of-court settlement in 2018 that agreed to institute copyright compliance in line with what was already in place at other universities in the province.[45] [46]