Access Copyright (“AC”) has recently published its Strategic Plan 2025 - 2028 which states
that:
The plan outlines the four
complementary strategic goals we will be working towards for the next three
years; all are critical for Access Copyright as we work to build a sustainable
future for the organization.
Is Access Copyright's "Strategic Plan 2025" that
talks about "new business amongst corporate clients" anything more
than aspirational fantasy? AC will need more than a slick website and
management clichés such as “We will put more emphasis on outcomes than
outputs” in order to get corporate “clients” after a more than two-decade
litany of litigation defeats in the Supreme Court of Canada & the Federal
Court.
It is unclear whether the past unnecessary and arguably sweetheart
deals with the federal and provincial governments are still ongoing, and is so,
why. Indeed, it was such deals that got AC started in the 1980’s. Needless to
say, bad decisions in the past need not be repeated in the future. Governments
and businesses are absolutely entitled to the “users’ rights” that are provided
by the fair dealing provisions in s. 29 of Canada’s Copyright
Act. It is government’s job to be competent and well informed
and this requires extensive “research”. Likewise, for businesses large and
small.
AC continues to spend its vanishing credibility and much depleted financial resources on fanning
the fiction that its precipitous decline in revenues since 2012 is the result
of the legislation that year that included the word “education” in s. 29 of the
Copyright Act. That change, along with the inclusion of “satire and
parody” essentially confirmed very longstanding case law and common sense. It
brought Canada closer to the still more user friendly “fair use” provisions in
American law. “Fair dealing” in Canadian copyright law didn’t happen overnight
in 2012: it has been explicitly provided in our Copyright Act for more
than a century.
This is from AC’s comments on its 2023 annual report: Access Copyright
Charting the Impact of Fair
Dealing for Education
(2012-2023)
EDUCATION REVENUES*
*Revenue totals do not include
the following:
• Retroactive K-12 royalties recognized in 2012 and 2013 that were payable for
the years 2005-2009;
• Royalties recognized in 2022 and 2023 collected from post-secondary institutions
under the 2011-2017 tariff. The vast majority of these royalties relate to the
year 2011.
Retroactive K-12 royalties collected in 2019 have been allocated to 2012-2017
representing the years in which they were payable.
The main reason that AC’s educational revenues have fallen
so precipitously is that, beginning in about 2012, educational institutions
realized, following persistent and persuasive advocacy led primarily by Prof.
Ariel Katz and also myself, that its tariffs set by the Copyright Board were
NOT MANDATORY and its licences not only offered very little, if any, value but
simply weren’t necessary. See Ariel Katz’s Fair
Dealing’s Halls of F/Sh/ame blog from 2012 The non-mandatory
aspect was conceptually confirmed by the Supreme Court of Canada in CBC v.
SODRAC in 2015 and very specifically confirmed in York
University v. Canadian Copyright Licensing Agency in 2021. Ariel and I made the prevailing arguments
by way of interventions in both cases. I appeared as intervener counsel in both
cases, and Ariel was represented by Sana Halwani in the York case. Prof. David
Lametti, as he then was, was on our team in the SODRAC case.
None of the court decisions that have gone against AC,
including the York decision from the Supreme Court, turned on the addition of
the word “education” in s. 29 of the Copyright Act. See my 1923 detailed
blog about A Fair Deal for Fair Dealing. At that
time, I pointed out that:
“ key Canadian SCC fair dealing decisions, including the
landmark 2012 Alberta v. Access Copyright and the SOCAN v.
Bell iTunes preview cases, were decided on the
pre-2012 law that goes back to 1921 before the word
“education” was added to s. 29.” I also stated then that “The PSE sector is
spending more money than ever though acquisitions, direct licensing, and
dealing with the much more responsible and responsive American Copyright
Clearance Center for transactional licences. Access Copyright is notoriously
inefficient in its distribution, offers very limited “rights”, and its
repertoire is focussed on Canadian literature – which is not a major component
in the PSE sector.” So, copyright owners are getting payments to which they are
entitled – but just not via AC.
The importance and influence generally and in the courts of
Ariel Katz’s two landmark “Spectre” articles has been immense. See Ariel
Katz: Spectre: Canadian Copyright and the Mandatory Tariff -
Part I and Spectre: Canadian Copyright and the Mandatory Tariff -
Part I.
In 2024, AC badly lost a major Federal Court decision that
it did not even try to appeal that required it to refund g $28,279,000 plus
legal costs to the CMEC K-12 consortium. I wrote about it here.
Fair dealing – which is a cornerstone of “users’ rights” and
is “always available” as taught by the Supreme Court of Canda in the landmark CCH decision – is spelled out in Canada’s Copyright
Act:
s. 29 Fair dealing
for the purpose of research, private study, education, parody or satire does
not infringe copyright.
A business, whether it is a small law firm or a giant bank,
is entitled to undertake “research” in order to go about its business. The fact
that a business is in business to make money does NOT prevent it from relying
on fair dealing, as the Supreme Court of Canada has twice confirmed. Fair
dealing may entail making copies of stuff for research purposes,
consistent with the six CCH factors “that
could be considered to help assess whether a dealing is fair”:
(1) the purpose of the
dealing; (2) the character of the dealing; (3) the amount of the dealing; (4)
alternatives to the dealing; (5) the nature of the work; and (6) the effect of
the dealing on the work. Although these considerations will not all arise
in every case of fair dealing, this list of factors provides a useful
analytical framework to govern determinations of fairness in future cases.
Sharing of material internally for research purposes in a
commercial setting has been validated by numerous court decisions, even when
the material was behind a paywall and obtained via the “licit” use of a
password, as Blacklock’s has learned to its chagrin in a recent Federal Court
decision from which it has filed a Hail Mary appeal that is unlikely to
succeed IMHO.
See also the SCC’s comments on “aggregate” copying in the York University case. And it should go
without saying but seems to be necessary to restate again and again that
copying that is not “substantial” doesn’t even engage the Copyright Act. Nor
does merely linking engage the Copyright Act.
So, AC may be dreaming in virtual reality if it thinks that Canadian
businesses are going to voluntarily pay a licence fee for their normal research
activities. Potentially misleading information addressed to various business
sectors on AC’s website is not helpful, e.g. BioTech, Pharma Firms, & Life Sciences
and other sectors.
As always, there’s the proverbial question of whether AC
actually has a viable chain of title to all or even much of the repertoire it purports
to be able to licence. BTW, for those business determined to spend their money
somehow, I have a very nice bridge to Brooklyn that I’m willing to sell for the
right unreasonable price.
If AC wants to be the proverbial delusional dog persisting in
chasing the legislative car to amend s. 29, it should be careful what it wishes
for – especially if it catches that car. There are overdue changes to s. 29
that would expand Canda’s fair dealing provision to make it as generous to
users as the American “fair use” version in 17 USC 107. If the next Government unwisely opens
up that Pandora’s box at AC’s behest, there will be strong calls for:
- Inclusion of the words “such as” in the list of fair dealing purposes;
- Confirmation that fair dealing applies to material behind a licitly accessed paywall;
- Confirmation that fair dealing rights cannot be trampled by contract;
- Addition of TDM access for the purpose of AI technology; and,
- Etc.
In the unlikely event that the next government should reopen
s. 29, it would be likely be a “make my day” moment for users’ rights in
Canada.
Likewise, if AC attempts to litigate in order force
businesses to enter into useless and unnecessary licences.
HPK*
*with a reminder, as always, that none of this is legal advice
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