The Supreme Court of Canada (SCC) recently issued its long and anxiously awaited decision in the York University vs. Access Copyright case, a decision creators hoped would first, reverse the Federal Court of Appeal’s 2020 ruling that Copyright Board-sanctioned tariffs are not mandatory, and second, affirm the lower federal courts’ ruling that neither York University’s fair dealing policy nor its actual practices constitute fair dealing. The Supreme Court of Canada did neither.
Canadian Authors Association (CAA) is dismayed with the SCC ruling, deeply disheartened that the nation’s top court did not achieve any true balance between creator rights and user rights.
On the issue of whether tariffs are mandatory, the SCC said it agreed with the Federal Court of Appeal that Copyright Board-approved tariffs “are voluntary for users. If a user who chooses not to be licensed under a tariff makes an unauthorized use of a work, the remedy is an infringement action which Access Copyright does not have standing to assert because it does not own the copyright.” In other words, in almost all cases, it would be up to the individual author of the infringed work to sue the university for damages.
“It is simply not financially feasible for individuals to sue institutions such as universities or boards of education for copyright infringement,” said Anita Purcell, CAA’s executive director. “This is the reason that copyright collectives are set up. This is the reason that the Copyright Board sets tariffs for users.”
The SCC observed that Parliament could amend the current wording on the law regarding the voluntary nature of tariffs. For this reason, CAA exhorts the federal government to immediately address this flawed law. “The federal government could easily correct the law,” said CAA co-chair Karen Gansel. “The federal government is interested in a modern copyright framework, and an enforceable tariff is clearly a part of that.”
On the issue of whether York University’s policy and practices constitute fair dealing, the SCC did not disturb the lower federal courts’ rulings and therefore, York’s guidelines do not suffice. However, in obiter dicta, i.e., commentary that is not legally binding, the court stated it did not endorse the legal reasoning used by the lower courts in a particular analysis. It said: “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 [Copyright] Act. Since we are not deciding the merits of the fair dealing appeal brought by York, there is no reason to answer the question in this case.”
When the law undermines the ability of writers to earn an income from writing — for example, when Copyright Board-sanctioned tariffs are ruled to be voluntary instead of mandatory — writers are disabled from creating.
When the law forces individual writers to go to court against large institutions, writers’ works can be copied without compensation, and therefore, writers are exploited. They are discouraged from creating. Surely the federal government is interested in ensuring that literature continues to express national culture, heritage, values and issues, and therefore promoting the ability of writers to create.
CAA applauds the federal government’s ongoing consultation process to ensure a modern copyright framework. In keeping with its demonstrated interest in strengthening copyright law, the government could readily repair the system to reward creators for creating, and its first step in doing so is to amend the flawed law concerning tariff enforceability.
A century-old membership-based national organization for writers at all stages of their writing careers, CAA is deeply concerned about the nation’s long-term cultural prosperity.
Canadian Authors Association (CAA) was founded in 1921 with a goal of lobbying for the protection of authors’ rights and fostering a sense of cultural and literary solidarity among Canadian writers. Today, CAA and its branches continue to work to provide aspiring, emerging, and professional writers across all genres and writing professions the programs, services, and resources they need to develop their skills, promote their work, and enhance their ability to earn a living as a writer.
For additional information:
Anita Purcell, Executive Director