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Copyright collective can't force tariffs on university, Supreme Court rules

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OTTAWA — A copyright collective cannot force York University to pay fees for the use of published works in the classroom, given that the school bowed out of a formal arrangement, the Supreme Court of Canada has ruled.

In its unanimous decision Friday, the high court said the law does not empower the Access Copyright collective to enforce royalty payments set out in a tariff approved by a federal board if a user chooses not to be bound by a licence. 

Access Copyright administers reproduction rights for published works, collects royalties and distributes them to copyright holders.

From 1994 to 2010, Access Copyright and York had a licence agreement that allowed professors to make copies of works in the collective's repertoire and set appropriate royalties.

By 2010, the royalties payable to Access Copyright under the licence consisted of an annual blanket fee of $3.38 per full-time equivalent student in addition to ten cents per page copied into a course pack for sale or distribution to students, the Supreme Court noted.

After licence renewal negotiations between York and Access Copyright hit a stalemate, the university briefly complied with an interim tariff approved by the federal Copyright Board but then opted out, introducing its own "fair dealing" guidelines.

The Federal Court of Canada allowed Access Copyright's action to enforce the interim tariff, but York successfully contested the point in the Federal Court of Appeal.

In writing for the Supreme Court, Justice Rosalie Abella said a review of the law, legislative context, purpose and supporting jurisprudence point to the conclusion that the tariffs are not mandatory for users who choose not to be licensed on the approved terms.

The full practical effects of the ruling were not immediately clear, particularly since the high court did not squarely address the question of what constitutes "fair dealing" in the academic context, leaving the issue for another day.

Still, York and groups representing universities, students, authors and research libraries welcomed the decision.

York said in a statement it was pleased the court affirmed the voluntary nature of the tariff and the ability of educational institutions to obtain licence rights from other sources.

"This confirms the flexibility of universities in how they manage copyright."

Universities Canada called the ruling an important moment for educational fair dealing in Canada. "We are still examining this decision to determine how this impacts our membership and Canada's education sector as a whole.”

York had sought a declaration that any copying conducted within its fair dealing guidelines for faculty and staff, issued in 2012, was protected under the Copyright Act.

However, the Supreme Court said it would be inappropriate to consider the guidelines without hearing arguments from a broader range of affected parties.

Even so, Abella provided some guidance on how to approach the issue.

"At the end of the day, the question in a case involving a university's fair dealing practices is whether those practices actualize the students’ right to receive course material for educational purposes in a fair manner, consistent with the underlying balance between users’ rights and creators' rights in the Act."

The Canadian Alliance of Student Associations said Friday that while balancing user rights and creator rights remain crucial, fair dealing must ultimately serve the research and study needs of students.

This report by The Canadian Press was first published July 30, 2021.

Jim Bronskill, The Canadian Press