Last week’s Supreme Court of Canada copyright decision in Access Copyright v. York University has unsurprisingly been applauded by the education community, which having faced years of litigation launched by the copyright collective, now finds its position vindicated. With the court resoundingly rejecting Access Copyright’s claims that its tariff is mandatory, finding that it had no standing to file a lawsuit for copyright infringement on behalf of its members, and concluding that a lower court fair dealing analysis that favoured the copyright collective was tainted with “a fairness assessment that was over before it began”, there is little doubt about which party prevailed. Yet Access Copyright has returned to its longstanding playbook of downplaying Supreme Court decisions and misleading its own members in the process.
For example, the 2004 CCH decision is now widely regarded as Canada’s most consequential copyright decision, affirming the role of user’s rights and the need for balance in copyright. The unanimous decision strongly rejected the arguments of legal publishers in a case that included interventions from Access Copyright. But despite the obvious implications – at the time I noted its impact on every aspect of copyright – Access Copyright’s press release offered spin completely at odds with the ruling as then Executive Director Fred Wardle was quoted as saying:
“The Supreme Court sent a strong message that people do not have a free rein to copy whatever they please. The ruling was clear that there is a difference between fair dealing and copying for other purposes and we will continue to ensure that rightsholders are compensated when their works are used for the latter.”
Roanie Levy, then Access Copyright’s Director of Legal Services added:
“This ruling does not change the fact that most copying of copyright protected works does not fall under fair dealing. The Supreme Court stated definitively that copyright does exist in original works, and that is why organizations must sign an Access Copyright licence or risk breaking the law.”
This spin may have been designed to assuage the concerns of members who had invested in the litigation, but it did little to level with them on the true implications of the decision.
The same was true after the Access Copyright v. Alberta Supreme Court of Canada decision in 2012. That decision was also a clear loss for the copyright collective, as the court re-affirmed user’s rights and rejected many of Access Copyright’s longstanding legal positions on teacher and student copying. Yet Access Copyright again sought to downplay the ruling, with a release stating that the decision “will have a limited impact on the importance of the Access Copyright licence to the education community” and then Executive Director Maureen Cavan adding:
“The fact is the Supreme Court was only looking at about seven percent of the copying done in schools. The decision absolutely does not mean a free-for-all on copyright-protected materials used in the classroom. On the contrary, it leaves copyright licensing in the education sector alive and well.”
Once again, Access Copyright was misleading its own members with a press release that did little to speak to the reality of Canadian copyright law.
That continues with the response to last week’s Supreme Court of Canada decision. The Access Copyright press release spins the decision as the “Supreme Court refuses to legitimize uncompensated copying by the education sector”, with comments that focus on the decision to not endorse the York fair dealing guidelines. Meanwhile, the Writers Union of Canada claims the decision “hinged on a technicality in the wording of Copyright Board tariffs.”
Yet a fair reading of the decision and watching the oral argument makes it clear that the court did not view the issue mandatory tariffs as a technicality. Indeed, during oral arguments, the justices repeatedly asked Access Copyright counsel to explain how a tariff could be mandatory when users have multiple options in how they can clear rights to works. Access Copyright acknowledged that users are not required to have its licence to remain onside with the law, a position it is loath to admit to politicians or its own members. Further, the unanimous Supreme Court left no doubt that the issue is not a technical one, but rather one involving basic fairness:
The legal consequence of Access Copyright’s mandatory tariff theory would be that a user would be liable to pay royalties in full as soon as it became responsible for any infringing use of a work within a collective society’s repertoire. Under the final 2011-2014 Access Copyright tariff for post-secondary educational institutions, for example, York would be liable to pay $24.80 for each of its 45,000 full time equivalent students, totalling over one million dollars per year, as soon as it made a single infringing use within Access Copyright’s repertoire. For a university that attempts to clear its copyright obligations using alternative licences and fair dealing, a single infringing use — one that was not authorized by fair dealing or independently licensed — could thereby become a tripwire making the university liable to pay the full royalties in a tariff. This “Sword of Damocles”, as the intervener the Canadian Association of Research Libraries aptly put it, renders a university’s freedom to clear its copyright obligations without involving Access Copyright completely illusory.
In fact, if there is a technicality in the decision, it comes from the court not ruling on York’s fair dealing guidelines. The court emphasizes the value of guidelines (“There is no doubt, as York argued, that guidelines are important to an educational institution’s ability to actualize fair dealing for its students”) and the errors in the lower court’s fair dealing analysis (“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.”). Had the court not faced the “technicality” of no live dispute, it is practically screaming that it would have rejected the fair dealing analysis and would have been inclined to support the development of fair dealing guidelines. While Access Copyright and the Writers Union have emphasized the lower court finding on fair dealing, we now know that finding was based on legal errors.
Access Copyright and its allies owe it to their members to provide them with a reality check but instead they simultaneously downplay the decision and immediately lobby for legislative reform. Here’s the reality: the Supreme Court says in this case that “increasing public access to and dissemination of artistic and intellectual works, which enrich society and often provide users with the tools and inspiration to generate works of their own, is a primary goal of copyright”, the copyright review already rejected reforms, and the world is moving on with more licensing choices and greater flexibility. This leaves Access Copyright increasingly irrelevant without an effort to compete in the marketplace alongside a failed litigation and lobbying strategy. Rather than going back to the same playbook yet again, it should consider that its legal theories have been rejected by the Supreme Court in multiple cases and a new approach based on legal realities is long overdue.