In July, the Federal Court of Canada released its decision in the case of The Canadian Copyright Licensing Agency (Access Copyright) v. York University, a copyright infringement suit with broad implications for the related issues of educational copying and fair dealing in Canada. The court found strongly in favour of authors’ rights, and dismissed York University’s claims to the fair dealing defence as outlined in their “fair dealing guidelines,” a set of instructions to faculty and students that made overly broad claims of uncompensated copying for amounts of work previously covered by collective licensing. As Justice Michael Phelan wrote in his reasons for the decision, “it is evident that York created [their copying] Guidelines and operated under them primarily to obtain for free that which they had previously paid for.”
This court action was the first since 2012, when controversial amendments were made to Canada’s Copyright Act, adding “education” as a new category of the fair dealing provision, but providing no definition or regulation to the practice of educational copying within such a provision. Because of that, Access v. York is widely viewed as a test case that sets precedent for educational copying in Canada. In a counterclaim, York University asked the court to rule on their copying guidelines, which are substantially similar to new guidelines widely adopted across the educational sector. As noted, Justice Phelan categorically rejected the university’s copying guidelines.
Education Sector Defiant
Shortly after the decision’s release, York University announced it intended to appeal the ruling. With that declaration, other post-secondary administrations made public announcements claiming the ruling did not affect their own copying practices, and instructing faculty to continue with guidelines nearly identical to those dismissed by the court. At the date of this writing, York has still not filed an appeal (appeal filings are due in early October 2017), and that means with the start of the academic year copying practices ruled illegal by Canada’s Federal Court continue to be promoted across the educational sector.
A class action suit launched against l’Université Laval by the province of Quebec’s own copyright licensing agency, Copibec, seeks a similar ruling against radically expanded fair dealing claims at that university. The class action was authorized by Quebec’s judiciary, and public notice of the suit went out in early September.
Should York University actually file its intended appeal of the Federal Court decision, it is likely Canada’s educational copying chaos will continue until these two cases are ultimately decided, and the growing economic damage to Canadian writing and publishing will mount ever higher. It is estimated that Canadian authors and publishers have collectively lost tens of millions of dollars per year since the 2012 change to the Copyright Act.
Renewed Call for Meaningful Review
Given York University’s refusal to accept the court’s decision, and the continued use of a discredited fair dealing interpretation, Canada’s authors and publishers have renewed their call for Parliament to review the Copyright Act with an eye to providing clarity and enforceable regulation in educational copying practices.
John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organization representing more than 2,000 professional authors in Canada. He is also Chair of the International Authors Forum, which represents over 650,000 professional authors worldwide.