The Supreme Court of Canada has today, July 30, dismissed the appeals brought by York University and the Canadian Copyright Licensing Agency (Access Copyright) concerning their dispute over the use of literary works and the payment of royalties under the interim licence tariffs approved by the Copyright Board.
The first judgment in this dispute was in 2017 when a Federal Court judge rejected York University’s fair dealing defence and ruled that Access Copyright can enforce the payment of royalties under the tariffs because they were mandatory. Last year, the Court of Appeal also rejected the fair dealing argument, but disagreed with the trial judge on the tariff enforcement. Both parties appealed to the Supreme Court.
Delivering the unanimous judgment of the court, Justice Abella agreed with the Court of Appeal's view that Access Copyright cannot enforce a tariff against a user who refused to accept the licence. Abella J concluded:"[Section] 68.2(1) [of the Copyright Act] does not make tariffs approved by the Copyright Board pursuant to s. 70.15 mandatory against users who choose not to be licensed on the approved terms."
The court did not rule on whether the copying made by the university was fair dealing because there was not a valid copyright infringement action before it (Access Copyright does not have the right to bring such an action on behalf of its members).
However, the court refused to endorse the approach of the courts below on fair dealing. “There are some significant jurisprudential problems with those aspects of their judgments,” Abella J said, and later explained: "The main problem with their analysis was that they approached the fairness analysis exclusively from the institutional perspective. This error tainted their analysis of several fairness factors."
Abella J also commented on Access Copyright's lack of standing to bring an infringement action: "It is of course open to Parliament to amend the Copyright Act if and when it sees fit to make collective infringement actions more readily available."
York University will see this as a victory because of the court's views on fair dealing and the fact that its appeal was dismissed without costs.
It remains to be seen how this judgment will affect copyright licensing in the education sector and the wider collective management industry in Canada.
Read the Supreme Court’s judgment here.
York University: Borden Ladner Gervais and Osler Hoskin & Harcourt
Access Copyright: Torys
The law firms that represented the interveners in the case include Lenczner Slaght, Gowling WLG, Ridout & Maybee, Cassels Brock & Blackwell, and Fasken.