Monday, February 17, 2025

Fantasy & Fiction about Fair Dealing in Canada: Access Copyright’s Strategic Plan 2025 - 2028

A bridge with a sign on it

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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.

This graphic lists the four primary goals of Access Copyright's 2025-2028 Strategic Plan: Increase sales of licences to Canadian organizations, raise awareness about copyright, build a performance-based culture and increase operational efficiency.

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*

A graph with green bars

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*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