Federal Court of Appeal Decides Access Copyright Tariffs Not Mandatory

Earlier this week, the Federal Court of Appeal released its decision on the case York University v. The Canadian Copyright Licensing Agency.

The collective licensing agency Access Copyright had sued York University, alleging the educational institution had been improperly reproducing and authorizing the copying of protected works.

This week's ruling can appear to be a mixed bag.

On the one hand, the Court found against Access Copyright on the mandatory tariff issue. That essentially means that educational institutions cannot be forced to accept the collective's licence.

On the other hand, York argued that its copies fell within fair dealing and were therefore did not constitute copyright infringement. The Court disagreed.

Reaction from:

• Canadian Association of Research Libraries and Canadian Federation of Library Associations: "On the key issue of the case—whether York was obliged to pay royalties to Access Copyright pursuant to the interim tariff—the Court found in favour of the appellant, York. The Court clearly ruled that Access Copyright’s Copyright Board tariffs are not mandatory. This constitutes a major victory for universities, upholding their right to choose whether to obtain a licence from Access Copyright or comply with their copyright obligations through other legal means. 'I conclude that a final tariff would not be enforceable against York because tariffs do not bind non-licensees. If a final tariff would not be binding, the conclusion can hardly be different for an interim tariff' (para. 204) . The decision is not as favourable for universities, libraries, and their users with respect to the second element of the case, fair dealing. The counterclaim by York— that all their copying, by having been compliant with their own guidelines, was fair dealing under the Copyright Act—was dismissed. The Court found that York had not adequately demonstrated that application of the guidelines ensured that all of its dealings were fair."
• Federal Court of Appeal Deals Access Copyright Huge Blow As It Overturns York University Copyright Decision (blog of Michael Geist, University of Ottawa law professor): "To be clear, the decision does not mean that there is no compensation for authors and publishers nor that their copyrights are unenforceable. Copyright law still grants them exclusive rights over their works subject to users’ rights such as fair dealing. This right includes the ability to pursue infringement claims backed by statutory damages. Rather, users have choice in how they obtain the necessary rights for the works they use. Access Copyright has long claimed there was effectively no choice as its approach was mandatory once copying was captured by the licence. This decision canvasses decades of legislative history to conclusively demonstrate that this was never the case. Instead, the Access Copyright licence – even once certified by the Copyright Board – is an option available to users. However, educational users today have a wide range of alternative options including site licensing, open access materials, transactional licences, and fair dealing. Many institutions now use a combination of these paid and unpaid approach as a better approach."
• Education is the key : discussion of Access Copyright v. York University (2020 FCA 77) (Fair Dealing in Education blog)