The Supreme Court of Canada brought a lengthy legal battle between Access Copyright and York University to an end last week, issuing a unanimous verdict written by retiring Justice Rosalie Abella that resoundingly rejected the copyright collective’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 Access Copyright was tainted with “a fairness assessment that was over before it began.” The decision removes any doubt that the Supreme Court remains strongly supportive of user’s rights in copyright and vindicates years of educational policy in shifting away from Access Copyright toward alternative means of ensuring compliance with copyright law.
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Copyright Vindication: Supreme Court Confirms Access Copyright Tariff Not Mandatory, Lower Court Fair Dealing Analysis Was “Tainted”
The Supreme Court of Canada issued its long-awaited decision in SODRAC v. CBC today, a case that has major implications for the role of technological neutrality in copyright. As I noted when it was argued before the court, though the case was about whether CBC should be required to pay royalties for incidental copies necessary to use new broadcast technologies, at stake was something far bigger: the future of technological neutrality under Canadian copyright law. The case offers wins and losses for both users and creators, but the manner in which the court strongly affirmed the principle of technological neutrality runs the risk of actually undermining technological adoption.
Led by Justice Abella, the court has reaffirmed that fair dealing is a user’s right that must be interpreted in a broad and liberal manner. In fact, the court provides further guidance on interpreting fair dealing with an emphasis on the need for a flexible, technology-neutral approach. In reading the decisions in the Access Copyright and song previews cases, it is hard to imagine a bigger victory for education, Internet users, and innovative companies. This post will provide some quick key points in the Access Copyright and song previews decisions.
The Access Copyright case has enormous implications for education and copyright in Canada. With the court’s strong endorsement of fair dealing in the classroom, it completely eviscerates much of Access Copyright’s business model and calls into question the value of the model licence signed by many Canadian universities. Writing for the majority, Abella adopts several crucial findings, not the least of which is that fair dealing is a user’s right. Piece by piece, Abella tears apart Access Copyright’s claims. First, she says the attempt by Access Copyright to separate teacher copies for students and students making their own copies should be rejected. The court states:
A sharply divided Supreme Court of Canada this morning upheld an Elections Act provision that bans publication of election results before the close of all polling stations in that district. The case stems from the posting of election results on a website during the 2000 election. The majority of the court (written by Bastarache with concurring reasons from Fish) ruled that the infringement of freedom of expression is justified given the desire for informational equality among all voters. The majority was unpersuaded by the ineffectiveness and inconvenience (to broadcasters) of the law, noting that "it cannot be allowed to override as important a goal as the protection of Canada’s electoral democracy."
As was the case in the Robertson v. Thomson copyright case, the dissent was written by Abella (there is nearly the same split in the court). Justice Abella was entirely unpersuaded by the evidence marshalled to justify the limit on freedom of expression. She states that
"Any evidence of harm to the public’s perception or conduct in knowing the election results from Atlantic Canada before they vote is speculative, inconclusive and largely unsubstantiated. The harm of suppressing core political speech, on the other hand, is profound. The benefits of the ban are, accordingly, far outweighed by its deleterious effects."
The dissent is also far more concerned with the interplay between the ban and new technologies.