Toronto
13 July 2017
Reporter: Mark Dugdale

Canadian court teaches university a thing or two about fair dealing


A Canadian university has been chastised for trying to use fair dealing law to sidestep licensing fees for educational material.

The Federal Court of Canada ruled this week that York University’s efforts to guide its faculty around copyright protection so that mandatory licensing fees would not have to be paid to Access Copyright, a copyright collective that represents the creators and publishers of printed and digital works, were “not fair in either their terms or their application”.

York University opted out of Access Copyright in 2011 due to rising tariffs. The university then issued guidelines to its faculty that advised them to use no more than 10 percent of a work in course materials and online resources.

Access Copyright filed a complaint against York University for copyright infringement, which the university sought to nullify through a countersuit to confirm that its actions constituted fair dealing, or fair use.

The Federal Court of Canada took particular issue with York University’s guidelines on fair dealing, which say a copy must be a ‘short excerpt’, specifically either 10 percent or less of a work, or no more than one chapter from a book, a single article from a periodical, an entire artistic work, poem or musical score from a collection, or an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work.

Justice Michael Phelan wrote on behalf of the Federal Court of Canada: “Quantitatively, the guidelines set these fixed and arbitrary limits on copying (thresholds) without addressing what makes these limits fair. The fact that the guidelines could allow for copying of up to 100 percent of the work of a particular author, so long as the copying was divided up between courses, indicates that the guidelines are arbitrary and are not soundly based in principle.”

York University must also pay and abide by the terms of the interim tariff as a Canadian post-secondary educational institution.

“The interim tariff is mandatory and enforceable against York,” Justice Phelan wrote. “The court has concluded that an approved tariff is a form of subordinate legislation which is mandatory and binding on any person to whom it pertains. There is no opting out.”

Roanie Levy, CEO and president of Access Copyright, welcomed the decision. “The court struck the right balance between the public good that is education and the need to reward creators to ensure that this public good continues to be well supported by quality Canadian content,” Levy said.

“Up until today, the state of the law regarding fair dealing left creators and the institutions that copy copyright protected works in a state of uncertainty. This decision will help the parties understand what can be done and paves the way to re-establish stability and royalties to creators.”

“This does not have to be a zero sum game.” added Cameron Macdonald, chair of the Access Copyright board of directors. “We—creators, publishers and educators—have an opportunity and responsibility to serve the considerable common interest between content creation and education.”

The Federal Court of Canada’s examination of fair dealing law follows the Supreme Court of Canada’s decision in Google v Equustek Solutions at the end of June, which said that domestic injunctions can apply globally.

Canadian publishers welcomed the decision. The Canadian Publishers’ Council and the Association of Canadian Publishers acted as interveners in the case.

Google was forced to remove the website of Datalink Technology Gateways from its search results around the world, to ensure the domestic injunction’s effectiveness in stopping the unlawful resale of products and reducing the benefits of trade secret theft.

Access Copyright applauded the Supreme Court of Canada’s decision. Its statement said: “This ruling is a win for intellectual property owners including the writing and publishing community.”

“The decision confirmed that Canadian courts have the power to order internet intermediaries such as search engines to globally de-index websites that illegally sell the intellectual property of others. We hope that this ruling will support initiatives to reduce online infringement of content.”

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