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Access Copyright wins landmark copyright case; York University ordered to pay tariffs for unfair “fair dealing”

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Access Copyright, the non-profit agency that licenses Canadian artistic works for third-party use, has won its 2013 lawsuit against Toronto’s York University over the school’s fair-dealing practices, a ruling celebrated by publishers, authors, and industry organizations.

In March 2011, after the controversial Bill C-32/Copyright Modernization Act died following the federal election call, Access Copyright proposed an interim tariff, which was approved by the Copyright Board of Canada, to ensure that its collective’s writers, visual artists, and publishers would continue to be paid for use of their work. York University opted out the tariff in favour of its own fair-dealing program. On July 13, Justice Michael L. Phelan ruled that York’s internal guidelines, which allow 10 per cent of a copyrighted material to be copied and distributed for course work without paying royalties, do not meet the fair-dealing requirements of Canada’s Copyright Act. In his ruling, Phelan states that “the Interim Tariff is mandatory and enforceable against York,” and that there is “no opting out.” He also states that “York’s own Fair Dealing Guidelines are not fair in either their terms or their application.” A counter-suit against Access Copyright was also dismissed.

Access Copyright executive director Roanie Levy says, “We are really pleased with the court’s decision in terms of the forcibility of the tariff and on fair dealing as well. We’ve always believe that there is a great deal of confusion and misinformation around fair dealing in the education sector. We’ve also believed that most educators would not willfully deny creators compensation for their work. So we are quite optimistic that when we had the opportunity to present the information to a judge, who would look at the facts, that we would get a positive outcome.”

Levy is also confident that the decision will have broader implications on the country’s Copyright Act, which is currently undergoing its mandated five-year review with Heritage Minister Mélanie Joly. In 2012, the Conservative government amended the country’s copyright law, expanding the fair-dealing provision for the purposes of education, parody, and satire. As a result of the way many educational institutions, such as York, have interpreted the broad rule, schools are paying less money to copyright holders. Earlier this year, Access Copyright warned publishers and creators the amount it will distribute in 2017 is anticipated to drop to $5 million, down from $11 million the previous year. The loss represents a 55 per cent decrease, which the agency directly attributes to a reduction in revenue from the educational sector. “The court is very clear,” says Levy, “it is unequivocal that fair-dealing guidelines don’t mean fair dealing as set out by the Supreme Court of Canada. They are not fair.”

Although the ruling is only a day old, Levy is optimistic Access Copyright can find some common ground with learning institutions. “I think we need to sit down with the education sector so we can work through that together,” she says. “It’s still really early to tell how. The decision has just come out. It is no doubt a surprise to them, but I’m very hopeful.”

The Association of Canadian Publishers also expressed in a statement its eagerness to “work in collaboration with our partners in education to find solutions that work for educators while also ensuring fair compensation for rightsholders whose creative work contributes so much to education in Canada. Fair compensation will ensure that Canadian publishers will be able to continue to develop innovative learning tools and educational resources for Canadian students that truly reflect their world, and that meet the needs and expectations of their educators.”

In a press release from the Writers’ Union of Canada, executive director John Degen said, “I believe all Canadian school boards, colleges, and universities have some serious rethinking to do. They have been sold a radical theory that collective licensing doesn’t apply to them. The court has now declared that theory invalid. We look forward to rebuilding and strengthening our traditional partnership with education.”