TORONTO – On June 22, Access Copyright filed an application with the Supreme Court of Canada for leave to appeal the April 22, 2020 decision of the Federal Court of Appeal in the legal action between the organization and York University.
The Court of Appeal’s decision has the potential to irreparably harm creators and publishers by increasing the complexity and cost for them to receive compensation when their works are copied. Today, Access Copyright is seeking leave from the Supreme Court of Canada in the hopes of reversing that harm.
For over 30 years, collective licensing has facilitated the lawful copying and use by the education sector of text-based works created by Canadian creators and publishers, ensuring that they receive fair compensation when their works are copied and used.
When the Copyright Modernization Act expanded “fair dealing” in 2012 to include an exception for education, the majority of schools, colleges and universities across Canada outside of Quebec adopted self-defined “Fair Dealing Guidelines” that led to published works being copied and used without any payment to publishers and creators. As predicted, this uncompensated copying has had a devastating impact on their ability to make a living from their creative efforts and to continue chronicling the stories that speak directly to Canadians.
The Federal Court of Appeal confirmed the trial Judge’s decision that the “Fair Dealing Guidelines” adopted by York University were not fair and failed to meet the Supreme Court’s test for fair dealing. The Court disagreed with the lower Court by finding that tariffs approved by the Copyright Board are not binding against infringers, creating the kind of market failure that the implementation of the modern collective administration of copyright was designed to address.
The Court of Appeal decision undermines the role of collective societies by making tariffs approved by the Copyright Board optional for infringers. Instead of permitting creators and publishers to collectively address mass copying occurring across the entire education sector, through the enforcement of an approved tariff, the Court of Appeal decision leaves them on their own to pursue these infringers through individual infringement lawsuits. Creators and publishers will now face insurmountable obstacles in detecting and pursuing unauthorized copying activities occurring daily in the thousands of individual educational institutions in Canada. In most cases, the costs and complexity of those infringement proceedings will exceed the recoverable financial award.
“Today’s decision by Access Copyright to seek leave to appeal is an important step in upholding the rights of creators and publishers,” said Roanie Levy, CEO & President of Access Copyright. “The Federal Court of Appeal decision on the enforceability of tariffs, unless overturned, has far-reaching implications for the future of Canada’s creative community.”
York University has additionally filed a leave application with the Supreme Court of Canada.
About Access Copyright
For over 30 years, Access Copyright has facilitated content use for educational and professional purposes. Access Copyright has helped people make customized use of published materials combined with an assurance that the original creators and publishers also benefit, so that they can continue creating new and innovative works. This is vitally important to a strong Canadian culture and to all who rely on quality publications.
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Amy Cormier, Head of Communications and Marketing, email@example.com