Canada: Why Universities Are Rethinking Their Copyright Policies

The Canadian Copyright Licensing Agency ("Access Copyright") v York University, 2017 FC 669

Overview

For over a decade, universities have had free-rein to use copyright-protected work for the purposes of education, research, private study, criticism, review, news reporting, satire and/or parody, so long as their use of the work was considered "fair dealing".

Several decisions from the Supreme Court of Canada have provided guidance as to what falls within the scope of "fair". However, with the release on 12 July 2017 of Access Copyright v York University, 2017 FC 669 (York University), a decision of by Justice Michael Phelan of the Federal Court, it appears the Supreme Court's guidance has been ignored. It is now uncertain whether the copyright policies found in most universities across Canada are sufficient to protect these institutions from liability for copyright fees.

In York University, one of Canada's largest universities had copyright guidelines in place to align with the Supreme Court of Canada's "fair dealing" requirements, such that the University would be exempt from paying copyright fees to The Canadian Copyright Licensing Agency (Access Copyright). Access Copyright sued the University alleging it was infringing copyright and had to pay the fees. In response, the University maintained its use of copyright-protected materials was "fair dealing" and sought a declaration to that effect.

In his decision, Mr. Justice Phelan denied York's request for a declaration stating "the Court concludes that York Fair Dealing Guidelines are not fair" and further, "it is evident that York created the guidelines and operated under them primarily to obtain for free that which they had previously paid for". An assessment of damages to be paid by the University is to be addressed at a later date.

"Fair Dealing"

To determine whether an education-related use of a copyright-protected work is "fair", the Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, stated 6 factors should be considered:

  • The PURPOSE of the proposed copying, including whether it is for education, research, private study, criticism, review, news reporting, satire and/or parody;
  • The CHARACTER of the proposed copying, including whether it involves single or multiple copies, and whether the copy is destroyed after it is used for its intended purpose;
  • The AMOUNT of the proposed copying from the individual user's perspective, including the proportion of the work which is proposed to be copied and the importance of that excerpt in relation to the whole work;
  • Any ALTERNATIVES to the proposed copying, including whether there is a non-copyrighted equivalent available;
  • The NATURE of the work, including whether it is published or unpublished; and
  • The EFFECT of the copying on the work, including whether the copy will compete with the commercial market of the original work.

For universities, this has generally meant that their copyright policy includes guidelines similar to the following:

  • The proposed copying must be for some education-related purpose;
  • The copy must be a short excerpt, meaning no more than 10% of a work or no more than one chapter from a book, one article from a periodical or newspaper or an entire entry from an encyclopedia, dictionary or similar reference work, whichever is larger;
  • The copy cannot contain more of the work than is required to achieve its education-related purpose;
  • The copy can only be distributed to those registered or engaged in a particular course or program, including class handouts and course packs;
  • Universities cannot charge for the copy any more than it costs to produce the copy; and
  • The copy must mention the source and the author/creator.

Impact of Access Copyright v York University

In York University, Justice Phelan stated that York's guidelines were insufficient and he noted that several other universities in this country use similar, and likewise insufficient, guidelines. In particular, Justice Phelan took issue with the fairness of the quantitative amounts of the copying occurring at York University. He wrote, "There is no explanation why 10% or a single article or any other limitation is fair".

The decision of the Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada remains the definitive authority in Canada with respect to "fair dealing". However, the York decision now creates uncertainty for universities. It will be interesting to see whether an appeal will be launched that may make its way to the Supreme Court of Canada. If the Supreme Court of Canada upheld the Federal Court's decision and in doing so, revisited the definition of fair dealing, it would mean that under current copyright guidelines, universities may no longer be able to avoid paying a tariff set by the Copyright Board of Canada to obtain permission for their copying – a cost which is likely to eventually be placed upon students of these institutions.

Suggestions

In the meantime, what are some ways universities can bring their copyright guidelines in line with a more narrowly defined "fair dealing" exception?

  • Set out what the limitations are for copying and set out why those limitations are "fair";
  • Be as detailed as possible and set further substantive restrictions on the quantity of copying that is permitted. For example: permitting the copying of 10% of a work may mean that a very large and substantial work can be copied if it is found to be part of an even larger anthology, but that only a section of the work would be permitted if it was taken solely from the work itself.
  • Be able to demonstrate actions taken to monitor the effectiveness of the copyright guidelines in place, including policing and enforcing the policy, when necessary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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