It is easy to lose track of how many major decisions that Access Copyright has LOST in the last twenty years, which include three straight losses in the Supreme Court of Canada (CCH in 2004, Alberta in 2012, and York in 2021) and now a very notable Federal Court decision that is likely to be upheld in any appeal.
is the landmark ruling by Justice Aylen of the Federal Court in Province
of Alberta et al v. Access Copyright 2024 FC 292, rendered February
I have quoted at length from
Justice Aylen’s ruling because it is very long (121 pages) and detailed and
will be a challenge even to experienced copyright lawyers to read carefully on
short notice. For whatever reason, it does not have a table of contents. But it
is a “must read” for every copyright lawyer, educator and copyright policy
official in Canada. It was issued very quickly and decisively, following final arguments
just over a month ago on January 17 and 18, 2024. At times in this blog, I refer to Access
Copyright as “AC”. I refer to the plaintiffs, Province of Alberta et al, as the
The parties have brought a motion for summary trial in which they have jointly
asked the Court to answer the following three questions:
1. Have the Plaintiffs been licensees
from 2013 onward?
2. If the Plaintiffs have not been
licensees from 2013 onward, are the Plaintiffs nevertheless liable in equity to
pay Access Copyright?
If the Plaintiffs are not liable in equity to pay Access Copyright, is Access
Copyright entitled to retain the 2010-2012 overpayment in any event?
COURT ORDERS that:
It is declared that the Plaintiffs overpaid Access Copyright for tariff
royalties during the years 2010, 2011 and 2012 by an amount equal to $2.35 per
full-time equivalent student [Overpayment]. The total amount of the Overpayment
as paid by each Plaintiff, exclusive of pre-judgment and post-judgment interest
and inclusive of the Copyright Board-set interest factor and taxes, is as set
out in Schedule B to the Statement of Claim.
It is declared that the Plaintiffs were not licensees of the Approved 2010-2015
Tariff from 2013 to 2015.
It is declared that the Plaintiffs are not liable to Access Copyright in
equity, or otherwise, in relation to any of the claims advanced by Access
Copyright in this proceeding.
It is declared that Access Copyright is not entitled to retain the Overpayment.
Access Copyright shall pay to each of the Plaintiffs a refund of the
Overpayment, in the amounts as set out in Schedule B to the Statement of Claim.
Access Copyright shall pay to the Plaintiffs pre-judgment interest on the
Overpayment, calculated pursuant to subsection 36(1) of the Federal Courts Act.
7. Access Copyright shall pay to the Plaintiffs post-judgment
interest on the Overpayment, calculated pursuant to subsection 37(1) of the
Federal Courts Act.
8. Access Copyright shall pay to the Plaintiffs their costs
of this motion and the underlying proceeding calculated based on the mid-point
of Column III of Tariff B [the Tariff], with the exception of the documentary
production costs which shall be calculated based on the mid-point of Column IV
of the Tariff.
9. Access Copyright shall pay to the Plaintiffs their
reasonable disbursements of the motion and the underlying proceeding. In the
event that the parties are unable to reach an agreement, the disbursements
shall be assessed by an assessment officer.
10. Access Copyright’s counterclaim is hereby dismissed.
The essence of the Consortium’s
claim as stated by Justice Aylen in the very lengthy and detailed recitation of
facts was this:
On February 16, 2018, prior to the Supreme Court’s decision in York University,
the Plaintiffs commenced this action against Access Copyright seeking, among
other relief: (a) a declaration that Access Copyright’s tariffs as certified by
the Board are not mandatory; (b) a declaration that the Plaintiffs overpaid
Access Copyright for the years 2010, 2011 and 2012 by an amount equal to $2.35
per FTE student; and (c) payment by Access Copyright of a refund or monetary
damages to the Plaintiffs in the amount of the overpayment, namely $25,493,109.36, together
with pre-judgment and post-judgment interest. (highlight added)
In a letter dated May 4, 2016 [2016 Letter], the Plaintiffs requested a refund
from Access Copyright of the difference between the per FTE student rate of
$4.81 that was paid in 2010 through 2012 under the continuation tariff and the
$2.46 per FTE student rate that was ultimately certified, in accordance with
section 15(5) of the Approved 2010-2015 Tariff. The total amount sought by the
Plaintiffs was $25,493,109.36. (highlight added)
Note that this figure does NOT
include interest due.
Accordingly, I find that none of Access Copyright’s asserted common law
doctrines apply so as to prevent the Plaintiffs from seeking a return of their
Justice Aylen has some scathing
findings re other aspects of AC’s submissions:
 While this is sufficient to dispose of Access Copyright’s meritless assertion
that participating in the tariff-setting process at all levels (before the
Board, this Court, and the Federal Court of Appeal) constituted an offer to
pay, the rationale for why the Plaintiffs would have participated sheds further light on the
absurdity of Access Copyright’s assertion. At the relevant time, the
Supreme Court had not yet decided York University, so it was possible that the
Plaintiffs would be bound to a statutory licence. If that were ultimately the
case, it is obvious that it was in the Plaintiffs’ interests to participate and
advocate for a tariff lower than the one being proposed by Access Copyright
($15.00 for 2010 to 2012 and $9.50 for 2013 to 2015), which was an increase of
$10.19 and $4.69 per FTE over and above the royalty under the Approved
2005-2009 Tariff. (highlight added)
To interpret the Copyright
Act as allowing equitable remedies that permit recovery of a remedy provided
for under subsection 68.2(1), but not otherwise available to Access Copyright
under the Copyright Act (because the Plaintiffs were not licensees), would be
incompatible with the object of the Copyright Act and result in absurdity.
Parliament has struck a careful balance between users’ and creators’ rights, as
well as with respect to the risk of collective societies developing
monopolistic powers. In striking that balance, Parliament chose to make
statutory licenses voluntary. To permit Access Copyright to obtain through equity what it cannot
obtain under the Copyright Act would turn the copyright regime on its head, by
effectively making voluntary statutory licences mandatory through the use of
equitable remedies. Under the circumstances, it is “irresistibly clear” that
the statutory scheme precludes Access Copyright from seeking the equitable
remedies it claims in the circumstances of this proceeding [see Moore,
supra at para 70]. (highlight added)
This concern lays bare one of the problems with Access Copyright’s equitable
claims. While Access Copyright has gone to great lengths to assert in its
submissions that it is not making an infringement claim (notwithstanding the
language used in its pleading), Access Copyright grounds its equitable claims
in the Plaintiffs’ acts of compensable copying. But compensable copying in the
absence of a licence is merely an act of infringement—an unauthorized exercise
of the owner’s exclusive right. As stated by the Supreme Court in York
University, a person who has not paid or offered to pay is not licensed and may
be liable for infringement.
To permit Access Copyright to obtain an equitable remedy for compensable
copying would have the effect of using equity to make the tariff de facto
mandatory or permitting Access Copyright (a non-exclusive licensee) to recover
for infringement, either of which would turn the copyright regime on its head.
Through its equitable claims, considered collectively, Access Copyright
ultimately seeks payment by the Plaintiffs of an amount equivalent to the
royalties the Plaintiffs would have owed had they been licensees, which would
result in the inequities and absurdities addressed above. (highlight
For these reasons, I conclude that, in the circumstances, it is not open to this Court to
award the equitable remedies sought by Access Copyright as to do so would turn
the copyright regime on its head. (highlight added)
For the reasons stated above, my determination in relation to each of the
issues is as follows:
Were the Plaintiffs licensees in 2013, 2014 and 2015? No.
If the Plaintiffs were not licensees from 2013 to 2015, are the Plaintiffs
nevertheless liable in equity, or otherwise, to pay Access Copyright an amount
equivalent to the tariffs royalties for 2013 to 2015? No.
If the Plaintiffs are not liable in equity, or otherwise, to pay Access
Copyright an amount equivalent to the tariff royalties for 2013 to 2015, is
Access Copyright entitled to retain the 2010 to 2012 overpayment in any event? No.
costs, Justice Aylen rules:
Accordingly, I find that the Plaintiffs are entitled to their costs to be
calculated in accordance with the mid-point of Column III of the Tariff for all
steps in this proceeding, other than documentary production steps which shall
be calculated in accordance with the mid-point of Column IV of the Tariff.
is incredibly important, detailed,
meticulous, and comprehensive. It reviews the evidence, the arguments, and the
applicable case law in unusual and commendable detail.
I would say, in
my opinion and based upon my long experience, that any appeal by AC is unlikely
Needless to say,
an affirmation by the Federal Court of Appeal would be even further devastating
to Access Copyright.
appeal might spark a cross appeal as to costs, which is the one aspect where AC
got some sympathy. Column 3 costs, as awarded to the Consortium, are at most a
small fraction of actual costs.
cases technically began in 2018, there was a lengthy leadup between the parties
at the Copyright Board and in the lobbying corridors. The Consortium deserves
credit for fighting for justice for Canadian
educators for so long.
This ruling is anything
but shocking. It confirms that Canada, like the USA, does NOT have mandatory
tariffs and that fair dealing is important and a key aspect of the copyright
Given the recent
downsizing and restructuring of AC and the departure of Roanie Levy, it will be
interesting to see if it now takes a less aggressive litigation approach or doubles
down and becomes even more aggressive.
· AC’s positions were very aggressive and sought to turn
the Copyright Act “on its head”, as the ruling repeatedly states. AC’s
oral advocacy, as led by Sarit Batner of McCarthy’s, was very dramatic, perhaps
even melodramatic and too much so, even allowing for the “meritless” and “absurdity”
aspect of many of AC’s key submissions..
· The Consortium’s positions and oral advocacy, led by
Aidan O’Neill of Fasken, were much more restrained,
concise, and even understated. In the result, this approach was clearly far more
convincing in this instance.
Let me remind readers, as always, that nothing in this blog is legal advice.
Note: I've corrected the above to reflect that the final arguments were on January 17 & 18, not February 17 & 18.