This morning, the Supreme Court of Canada issued a unanimous opinion in Access Copyright v. York University, finding that approved tariffs for works in a collective copyright society’s collection were not enforceable against a user that chose not to be bound, and suggesting that the lower courts had applied an unduly narrow interpretation of fair dealing. Authors Alliance applauds this decision, the last to be authored by renowned Justice Rosalie Abella before her retirement from the bench.
The case involved a claim by Access Copyright, a Canadian copyright collective, which sought to have York University comply with an interim tariff approved by the Copyright Board of Canada for works in Access Copyright’s collection. In response, York University brought a counterclaim seeking a declaration that its guidelines for copying materials for education purposes constituted “fair dealing” under the Copyright Act of Canada. The case raised the question of whether copyright collectives can force users to license content from them, even if the users prefer to comply with their copyright obligations in other ways.
Authors Alliance, together with Professor Ariel Katz, intervened in the case, submitting a factum to the Court and participating in oral arguments. On the issue of whether the approved tariffs are mandatory vis-à-vis users, we supported the Federal Court of Appeal’s finding that the approved tariffs bind copyright collectives but cannot be imposed on users as mandatory tariffs. On the issue of fair dealing, we argued that in the absence of specific allegations of copyright infringement from copyright owners, the lower courts should not have dealt with the issues of infringement and fair dealing. In addition, we urged the court to consider that Access Copyright does not represent the interests of all authors, and especially not the authors whose primary concern is their works having the greatest possible reach and impact.
In the decision, Justice Abella dismissed both York University’s and Access Copyright’s appeals. On the issue of mandatory tariffs, she found that the interim tariff set by Access Copyright was not enforceable upon users who chose not to be bound, as Authors Alliance argued in our factum. Justice Abella further stated that Access Copyright was not given authority by Parliament to make such licensing schemes mandatory on all users of the works in its collection. Emphasizing that the statutory scheme allowing collective administration of tariffs is intended to protect users from “unfair exertion of  societies’ market power,” Justice Abella pointed out that allowing a society to “foist a license on an unwilling user” was inconsistent with “the protective purpose of the regime.” She emphasized the right of users to access texts in other ways than by obtaining a license from Access Copyright—which, as Authors Alliance pointed out in our factum, is a non-exclusive licensing agent that does not have a monopoly on the use of the works in its collection—and paying the interim tariffs.
The Court did not make a ruling on the issue of fair dealing because, in light of the finding that the tariff was not mandatory against York University, it found there was no live dispute between the parties and that it therefore need not reach the issue of fair dealing. Authors Alliance had urged such an approach in our factum, pointing out that without specific allegations of infringement from copyright owners, the lower courts should not have dealt with infringement and fair dealing.
Nonetheless, Justice Abella stated forcefully that the Supreme Court did not endorse the narrow vision of fair dealing set forth by the Federal Court and Federal Court of Appeal. This is because the lower courts inappropriately “approached the analysis from an institutional perspective only, leaving out the perspective of students that used these materials.” Under a view of fair dealing that did consider the students as the users of these materials, the educational purpose of the copying would weigh in favor of a finding of fair dealing. Instead, the fair dealing question before the lower courts should have been whether the copying “actualizes the students’ right to receive course materials for educational purposes in a fair manner.” Authors Alliance applauds the renewed focus on the educational purposes of the copying in this case and Justice Abella’s emphasis on these purposes as supporting a finding of fair dealing.
Authors Alliance is pleased with the Court’s ruling, which adopted many of the principles set forth in our factum. We pointed out that authors are not a monolith, and Access Copyright did not represent the interests of all authors. By emphasizing that Access Copyright had no standing to sue for copyright infringement, as it was not a copyright holder, the court signaled that the mandatory tariffs were not aligned with the interests of all authors. Indeed, many authors have as their highest goal seeing their works reach broad audiences and contribute to the progress of knowledge, such as being used in higher education, as the works in the case were. The robust interpretation of fair dealing offered in the decision was consistent with the thrust of our factum—that Authors Alliance’s members interests are best served by a robust application of fair dealing that does not interfere with these dissemination goals.
Authors Alliance is grateful to Lenczner Slaght attorneys Sana Halwani, Paul-Erik Veel, and Jacqueline Chan, as well as law clerk Anna Hucman, for pro bono assistance with this intervention.