Following a landmark Supreme Court decision and amendments to Canada’s Copyright Act, it’s “business unusual” for Access Copyright, the country’s largest copyright-holder group. The organization is battling tough challenges in Copyright Board proceedings. It faces the prospect of dwindling revenues from post-secondary institutions, and as it moves ahead with a lawsuit against York University, copyright experts wonder if the organization will have much of a business among the ivory towers in the future.
Until a few years ago, post-secondary institutions routinely bought licences from Access Copyright. These agreements were permission from authors, publishers, and other rights holders for the schools to use copyright-protected material.
In 2012, two major changes in copyright law helped upset that tradition. The first involved Canada’s Copyright Act. That June, the federal government amended the act’s “fair dealing” section to add “education” to the activities people could use copyright-protected works for without permission or payment.
The second change came in July 2012. The Supreme Court of Canada decided in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) that teachers are allowed to use excerpts of copyright-protected material for education purposes without seeking permission from rights holders or paying them.
After those changes — alongside four other copyright-related decisions from the Supreme Court that year — colleges and universities felt freer to use copyright-protected works without Access Copyright agreements. Many schools developed fair-dealing guidelines aligned with the act and the Supreme Court decision.
But Access Copyright argued the court decision only applied to K-12 schools, not post-secondary institutions. It also insisted the amendments didn’t mean colleges and universities were free to use copyright-protected material without payment.
“When a user relies on fair dealing to exempt their copying, they still have to establish that the use is fair,” says Access Copyright general counsel Erin Finlay. “It’s our position that the type of systematic copying to the levels that universities copy — books, magazines, and journals — is simply not fair.”
In April 2013, Access Copyright sued York University, alleging York’s fair-dealing guidelines “authorize and encourage copying that is not supported by the law.”
York lawsuit begins discovery
Finlay says her organization and York are in the discovery phase of the proceeding, working toward a likely trial date some time in 2016.
Howard Knopf at Moffat & Co., Macera & Jarzyna LLP says the proceeding will be unusually long. “Parties have asked for a 15-day trial. For a copyright case, it’s kind of like the Hundred Years War.”
And as in any war, a few skirmishes have broken out. For instance, this past January, the Council of Ministers of Education, Canada Copyright Consortium filed an application to intervene. The group argued that, as the voice of Canadian education ministers on copyright, it has an interest in how fair-dealings guidelines are interpreted, and so it should be involved. But Federal Court Judge Kevin Aalto denied CMEC’s request, saying its participation would not “elucidate the issues for the court.”
In February, York filed a motion to split the case into two phases. In the first phase, the court would decide whether Access Copyright can assert a claim under its tariff for post-secondary institutions — a rate established under the Copyright Board of Canada that colleges and universities pay to compensate rights holders. In the second phase, the court would consider the alleged unauthorized copying — but only if the court decides in the first phase that the grounds are valid.
Copyright Board tangled in tariffs
The courtroom isn’t the only copyright fight venue. The Copyright Board of Canada — the regulator that establishes royalties — is considering two post-secondary tariffs proposed by Access Copyright. The first tariff covers 2011 to 2013. The second covers 2014 to 2017. The board must decide on the first tariff before deciding the second.
These tariffs only apply in certain situations: when a school uses copyright-protected material beyond the exemptions described in the fair dealing section of the Copyright Act, and when such a school has not compensated rights holders, either via an Access Copyright licence or some other agreement.
The Copyright Board proceeding for Access Copyright’s 2011 to 2013 tariff began in 2010. Initially, Access Copyright suggested a rate of $45 per fulltime equivalent student. The previous tariff was $3.38 per FTE student plus 10 cents per page photocopied. Access Copyright said the new price was all-in, doing away with the additional 10 cents per page and including digital rights.
The proceeding has proved contentious and long. In September 2013, Access Copyright reduced the tariff rate to $26 per FTE student, aligned with the model post-secondary licence established after negotiations with the Association of Universities and Colleges of Canada in 2012.
In November, Access Copyright requested the Copyright Board merge the two tariff proceedings. The group said they raise similar legal issues and the process would be faster. But the board denied that request, noting the 2014 to 2017 tariff involves the “making-available right,” whereas the 2011 to 2013 tariff doesn’t mention it. The board said the making-available right fundamentally changes the way it considers the 2014 to 2017 tariff.
In December, University of Toronto law professor Ariel Katz, a strident opponent of Access Copyright’s tariffs, stepped away from his role as objector in the 2011 to 2013 proceeding. In a letter to the Copyright Board, he said he withdrew because the process is unfair without including institutional representatives such as the AUCC, which withdrew from the proceeding in 2012. “I am concerned that my continued involvement might only serve as a fig leaf covering up a seriously flawed process and outcome,” he wrote.
Then two more objectors — the Canadian Association of University Teachers and the Canadian Federation of Students — announced they were withdrawing, too. “We had to weigh the potential positive impact we can have in the hearing against appearing to legitimize a process of which we are increasingly doubtful,” said association executive director James Turk.
Now that so many objectors have withdrawn, the board has decided to play a larger role as an objector as well as adjudicator. The organization postponed a hearing sine die, originally planned for February, and is collecting information to prepare for this new, expanded part.
“We do not yet know when or how the hearing will resume,” says Access Copyright’s Finlay. “It is unfortunate that the educational user community has chosen to withdraw from a process that was designed to assess the impact of fair dealing for educational purposes by an independent, expert arbitrator. Their withdrawal has made the process more difficult for both Access Copyright and the Copyright Board. Obviously, we are very eager to have the case decided on its merits.”
Schools change copyright processes
Meanwhile, universities have been rethinking their relationships with Access Copyright. Last December, U of T and Western University announced they would not renew their licences. The schools said they had failed to reach agreements with Access Copyright that, in U of T’s words, “reflected the significant evolution in copyright regulation that has occurred.”
According to University of Ottawa law professor Michael Geist, UBC, U of T, Western, and York are the tip of the iceberg for Access Copyright. “I expect that when the contracts run out for the remaining institutions that signed on just before the Supreme Court decisions, they will likely opt out, too.”
Hubert Lai, general counsel for the University of British Columbia, agrees. “I think we’ll be able to count the number of universities who do renew their agreements on our fingers.”
Experts debate fairness
Fairness may be the heart of copyright justice. This past May, Brock University hosted a debate between lawyer Howard Knopf and Access Copyright executive director Roanie Levy. They discussed what’s fair, how to assess fairness, and how Access Copyright should operate.
Knopf suggested that given the Supreme Court decision and the act amendments, schools may be better off without Access Copyright licences. “If universities can legally comply with copyright at a lower cost than Access Copyright charges by relying on publishers’ licences, fair dealing, transactional licences, open access, etc., they can and should do so.”
Levy said Access Copyright helps publishers recoup their costs and thrive. “It essentially rewards the investments made by the creators and publishers of those works that are valued enough to be shared with students. And it ensures that there is a continued investment into new publications.”
Knopf said if Access Copyright changed the way it operates to deliver real value to schools, it would win back the post-secondary institutions. Judging from a statement it made when it announced the York University lawsuit last year, Access Copyright is trying to do just that: develop a new business model. “Access Copyright believes in a strong and vibrant culture of writing, publishing, reading, teaching and learning in Canada and is exploring new ways to meet the needs of teachers and students in this new digital learning environment,” the group said.