Thursday, July 27, 2017

Access Copyright Proposed Post-Secondary Tariffs 2018-2020

Access Copyright has filed for a proposed Post-Secondary tariff for 2018-2020. Meanwhile, the Copyright Board has still not ruled on the proposed tariffs from 2011-2017. Meanwhile, one would expect that York University will appeal and even seek to stay the recent Federal Court decision and that there may be interventions to assist the Court.  See my comments on Prof. Katz’s comments and questions, to which I link, concerning this ruling here.

So, meanwhile, here are copies of what I know to have been filed at the Copyright Board in time for the July 19, 2017 deadline:

No further comments at this time…


PS - I've just received this objection from Mr. Sean Maguire, a post-secondary student.

Wednesday, July 26, 2017

Access Copyright v. York University - Some Important Comments and Questions from Prof. Ariel Katz

Prof. Ariel Katz's brilliant research and analysis enabled me on behalf of him and then Prof. David Lametti's (now MP and Parliamentary Secretary to Minister of ISED) McGill institute to persuade the Supreme Court of Canada, per Rothstein, J., in CBC v. SODRAC in 2015 that Copyright Board tariffs are not "mandatory". Prof Katz has just posted a very important blog following the Access Copyright v. York University decision from the Federal Court two weeks ago, in which the judgment of the Supreme Court of Canada was not followed.

His blog is entitled "Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss" and begins thus:
Two weeks ago, Justice Phelan of the Federal Court handed Access Copyright a huge victory in its lawsuit against York University.[1] I have followed the case closely and read the parties’ submissions and I have been constantly concerned that York risked snatching defeat from the jaws of victory. Unfortunately, this is what happened. The good news is that many of the Court’s fundamental findings rest on very loose foundations, that I am confident that York’s loss is only temporary, and that if York appeals the decision and handles the appeal appropriately, most, if not all, of the Court’s major findings will be reversed. One way or another, and possibly with interveners assisting the court, one hopes that all essential arguments will be made on appeal. Therefore, this post provides an anatomy of York’s predictable yet totally avoidable loss.
In a nutshell, York has chosen to ignore the most important question in this case, namely whether tariffs approved by the Copyright Board become mandatory on users. The answer to this question carries long-term strategic implications for Access Copyright and for all educational institutions in Canada. Access Copyright understood the importance of this question and argued its case accordingly. York, on the other hand, has chosen to limit its submissions to the narrow question of whether an interim tariff could be mandatory, and refrained from addressing the general question of whether approved tariffs (i.e., final tariffs) were mandatory on users. York has also been eager, it seems, to turn this case into a case about fair dealing, which need not have happened.
          (highlight added)

Anyone interested in Canadian education  and/or copyright law will want to read this blog through and thoroughly to the end.


Friday, July 14, 2017

Access Copyright v. York U – And All Eyes Over to York U for What's Next

The Good News and the Bad News

The only good news for the Canadian educational community about the recent Federal Court decision in Access Copyright v. York University is that the judgment is, with respect, so clearly and consistently wrong that there is a strong likelihood of a successful appeal – assuming that York decides to appeal. An application for a stay of the judgment is presumably being considered. Otherwise, it is very bad news. It could prove to be very disruptive very quickly not only to York University but to the entire educational community in Canada. Moreover, unless the decision is overturned and preferably stayed in the meantime, there will be greatly increased costs, chill on innovation and education, and potential chaos.

I am getting a lot of questions about this decision and requests for a blog comment. Unfortunately, I do not have a lot of time at the moment to do a lengthy analytical blog by my usual measure. So, here are some quick observations. Some of this is recycled from my many previous blogs, which can be retrieved by searching for “mandatory tariff” or “York University”, etc.  Here is one of my more detailed postings from March 22, 2016.

The Judgment

The Court’s conclusion that the interim tariff is mandatory and enforceable is incorrect. York made a very narrow and technical argument on why an interim tariff is it is not mandatory, which essentially entailed that it was not an “approved” tariff within the meaning of s. 68.2 and it was not published in the Canada Gazette, as required for an “approved tariff” pursuant to s. 68(4).  The Court stated in para. 234 that “York’s position, if accepted, would be a triumph of form over substance. That argument is unsustainable.”

York had chosen not to rely heavily on the CBC v. SODRAC case decided on November 26, 2015 in which the Supreme Court of Canada (“SCC”) ruled that licenses fixed by the Board under s. 70.2 are not mandatory, having accepted the argument I made on behalf of Professors Ariel Katz and David Lametti (whose McGill institute was an intervener and who is now an MP and Parliamentary Secretary to the Minister of ISED).  York said in its written argument that the decision is “very instructive” and that the principles are “equally applicable” here. However, York’s lead counsel said repeatedly in oral argument that the Court need not decide whether a final tariff would be “mandatory”.

This issue should clearly be appealed and all possible arguments should be made to the Federal Court of Appeal, which will hopefully be more attentive to the reasoning of the SCC and where interveners can make additional useful and possibly essential arguments that would assist the court. For the convenience of readers, I reiterate from previous postings that Justice Rothstein stated as follows in the CBC v. SODRAC decision:
(112) I conclude that the statutory licensing scheme does not contemplate that licences fixed by the Board pursuant to s. 70.2 should have a mandatory binding effect against users.

(113) I find that licences fixed by the Board do not have mandatory binding force over a user; the Board has the statutory authority to fix the terms of licences pursuant to s. 70.2, but a user retains the ability to decide whether to become a licensee and operate pursuant to that licence, or to decline.

To those hung up upon a possible distinction between s. 70.2 and s. 68.2, in fact, s. 68.2 was specifically referred to twice in our SCC factum. We also referred to universities several time in our factum and oral argument at the SCC. The case before the SCC involved s. 70.2 but the arguments are actually even better for s. 68.2 – the more general regime.

Indeed, if a tariff is not mandatory when parties voluntarily come to the Board to “arbitrate” a dispute, it should be all the more (“a fortiori” as lawyers say) non-mandatory when parties are dragged kicking and screaming before the Copyright Board and would prefer to clear their copyright needs in other ways.

The Court did not appreciate the nature of a tariff – which is that it is mandatory on the provider of a service but not on a user who doesn’t need the service. As I’ve said before, for those not familiar with or interested in the technical details of our argument in the SCC factum  that Ariel Katz, David Lametti and I submitted to the Supreme Court, consider this simple layperson’s analogy. In the old days, there were “tariffs” for passenger travel on railroads. Such tariffs would set a maximum cost of, say $10, to travel from Ottawa to Toronto and required that CN Rail run four trains every day and stop in certain places, or whatever, etc. But such tariffs did not require the passenger to buy a Canada-wide all year pass for $3,000 if they only needed to travel to Toronto or Montreal or Smith’s Falls a few times each year. And above all, such tariffs did not prevent any passenger from using a plane, car, a Greyhound bus or even a bicycle to get there from here. That is how “tariffs” work. In return for some degree of privilege from the government, the regulated party providing the service and seeking to be paid must submit to upper limits on what can be charged and accept other terms and conditions, such as the nature and quality of services that must be offered. Moreover, except in very rare examples such as a sole bridge crossing with no practical alternatives, there are usually competitive substitutes available.

The Court’s reasoning on fair dealing is lengthy and largely oblivious to the teaching of the SCC in its fair dealing trilogy and particularly in the Alberta decision of the SCC, which accepted the point I made on behalf of Prof. Katz’s intervener institute that is absolutely vital to the educational context, which is that a teacher can decide what is useful for a student and provide excerpts – or in some cases the whole of a work – for such legitimate fair dealing purposes. In Alberta, the SCC stated:
[23]                          In the case before us, however, there is no such separate purpose on the part of the teacher.  Teachers have no ulterior motive when providing copies to students.  Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study.  It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers.  They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.  The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.  Instruction and research/private study are, in the school context, tautological. 

Michael Geist has a good posting on some of the many other problems in the reasoning on fair dealing. See also Lisa di Valentino’s comments on the fair dealing issues.

The Court’s failure to appreciate the significance of the three Supreme Court Canada fair dealing decisions since 2004 is clear in the following comment:

[272] It is evident that York created the Guidelines and operated under them primarily to obtain for free that which they had previously paid for. One may legitimately ask how such “works for free” could be fair if fairness encompasses more than one person’s unilateral benefit.

While York’s Guidelines are not perfect and there are better guidelines elsewhere, that comment is not only harsh but shows a lack of understanding of the basis of fair dealing. Indeed, the fair dealing provisions (“users’ rights” that must be given a large and liberal interpretation according to the SCC) are there precisely to allow “free” use under certain circumstances of material where permission and/or payment might otherwise be required. That has always been a cornerstone of copyright law in common law countries and has been codified in Canadian law since 1924 and American law since 1976.

What’s Next?

In any case, the main question on everyone’s mind at the moment is what comes next.

The immediate issue is how this will affect whatever submissions are made by way of objection to the Access Copyright’s proposed post-secondary tariff. Objections are due on July 19, 2017. Presumably, Universities Canada and others are looking at filing objections and what to say. It will be interesting to see who represents whom on these objections and what the objections will contain. Obviously, there is precious little time to factor in the impact of the decision rendered just one week in advance of this deadline.

Naturally, everyone is wondering whether York will appeal this decision. The educational ecosystem from Kindergarten to Post-Doctoral studies is at stake. One cannot overstate the importance of an appeal in this case, which would no doubt attract the attention of interveners on both sides of the fence.

However, it cannot simply be assumed that York will appeal. It will be recalled that AUCC (now Universities Canada) failed to seek judicial review (“JR”, i.e. an appeal in layperson’s terms) of the December 23, 2010 Interim Tariff decision from the Copyright Board that gave rise to the present proceedings. This is an important point emphasized by the Judge in the current case and was definitely not helpful to York’s cause. See paras 226 to 231 of the decision.

I have blogged about this on numerous occasions including right after the interim decision was imposed on December 23, 2010.  

A JR application at the time might very well might have succeeded and would have cost a tiny fraction of all the money that has been spent since on the Board proceedings and on this current case, not to mention all of the ensuing cost and chaos in the post-secondary world with opting out, model agreements, etc.  The worst thing that could have happened would have been the Court could have said no at that time. AUCC withdrew a couple of years later, having spent at least $1.7 million that we know about. Although no explicit explanation of AUCC’s withdrawal was ever publicly provided, presumably the well ran dry. AUCC was represented then by the same firm that has represented York U in the current case that has just been decided. The current court case has presumably already cost at least $1,000,000 or so according to a 2015 estimate by York University counsel. It is now 2017. So, it may have now cost a lot more. We don’t know.

Needless to say, if York doesn’t appeal, there can be no appeal. That is the way the procedural law and rules work. Even though other universities and colleges will be directly affected, only York can launch an appeal in this instance.  This is not “judicial review”, where directly affected parties may in principle have standing in certain circumstances to initiate review. If York fails to step up to the plate now for any reason, the game is over for everyone in terms of an appeal of the current decision.

It is also apparent that the decision may cause immediate problems for York, given that the Judge issued this very unusual invitation for Access Copyright to apply immediately for an injunction:
3. The Plaintiff may apply for an injunction prohibiting the Defendant from reproducing or authorizing reproduction of all copyright protected works falling within the Approved Tariff and offering such reproduction for sale, rent or distribution until all amounts of royalties plus interest are paid.
7. The Court shall remain seized of this matter to address issues arising from this Judgment and Reasons including but not limited to the calculation of amounts which are due or may become due.
(emphasis added)

How this can be squared with the fact that Phase II - which was supposed to deal with issues of what is actually in Access Copyright’s repertoire and questions relating to quantum – is potentially years away? Indeed, paragraph 219 of the judgment says that:

[219] The copying of works in Access’s repertoire, the scope of that repertoire, and the accounting and payment by York for such copying by its employees is deferred to Phase II of this action (the Damages Phase).

So, it’s not clear that there is any basis at this time to determine “all amounts of royalties”.

Given the potential for chaos at York as the fall semester approaches and if there is an injunction in place, not to mention at countless other campuses if Access Copyright succeeds in getting a new interim tariff from the Copyright Board based on this decision, one would assume that some urgent thought is presumably being given to seeking a stay of this judgment. Stays of judgments pending appeal are unusual. But here is a case where there are clearly serious issues, a strong likelihood of success, irreparable harm and even chaos in the educational sector and where the balance of convenience clearly favours the academic community carrying on with the status quo. Potential interveners may be also interested in this, but the first move has to come from York.

Normally, a Notice of Appeal must be filed within 30 days. However, days in July and August do not count for this calculation. So, York technically has until October 2, 2017 to file any notice of appeal. However, one hopes that York will file it as soon as possible along with any motion for a stay, so that the rest of the academic community in Canada can have some confidence and hopefully some degree of certainty as to how it should proceed.

Not only is the content of this decision, which is seriously disparaging to York in innumerable ways, unfortunate. The timing could hardly be worse. It comes more than a year after the final argument that took place on June 22-24, 2016. It comes after the holiday weekend, which means that a large number of people in the academic community will be on holidays or off campus for other reasons during July and August. It comes less than two months before the fall term. It comes well after the six month norm for judges to issue decisions.

This is potentially the most disruptive copyright decision we have ever seen in Canadian jurisprudence. Whatever happens at the Copyright Board on the new proposed tariff will likely take many years to determine, given past experience – except of course for another interim tariff, which the Board has shown remarkable alacrity in granting in this instance on the day before Christmas eve in 2010.  If the Federal Court of Appeal won’t or worst of all is not even asked to fix this situation immediately, some kind of legislative fix may become necessary.

Access Copyright naturally issued a very quick “feel good” press release about the current case stating that:
Access Copyright would welcome the opportunity for all interested stakeholders to entertain a meaningful dialogue with a view to resolving any outstanding issues between them and establish a relationship that emphasizes the common ground between those who create and those who teach and learn.

However, with its windfall victory that will presumably be undone on appeal and even stayed in the meantime (assuming that York University steps up to the plate), now is not likely a very propitious time for the academic community to resolve any outstanding issues with Access Copyright anywhere but in the Courts. The resolution that might work would be for Access Copyright to offer a useful license at a sufficiently low rate that would attract post-secondary institutions. Not to mention refraining from suing its clients. That is unlikely to happen as long as the current decision is in place.  

Let’s hope that those in the educational copyright community can somehow enjoy what’s left of the summer.


Wednesday, July 12, 2017

Access Copyright v. York University - the Actual Terms of the Judgment

Date: 20170712
Docket: T-578-13
Citation: 2017 FC 670
Ottawa, Ontario, July 12, 2017
PRESENT: The Honourable Mr. Justice Phelan
Defendant by Counterclaim
Plaintiff by Counterclaim

1. The Plaintiff is entitled to a declaration that the Defendant, York University, either directly or vicariously, from September 1, 2011 to at least December 31, 2013, reproduced and authorized the reproduction of copyright protected works, in whole or in substantial part, the reproduction and authorized reproduction of which obliges the Defendant to pay royalties to the Plaintiff under the Access Copyright Interim Post-Secondary Education Institutions Tariff 2011-2013 [the Approved Tariff].
2. The Defendant shall pay the royalties specified in the Approved Tariff for the periods specified therein.
3. The Plaintiff may apply for an injunction prohibiting the Defendant from reproducing or authorizing reproduction of all copyright protected works falling within the Approved Tariff and offering such reproduction for sale, rent or distribution until all amounts of royalties plus interest are paid.
4. The Defendant shall pay pre-judgment and post-judgment interest on all royalty amounts that are due in accordance with the Federal Courts Act, RSC 1985, c F-7.
5. The Plaintiff is entitled to costs to be determined at a later date.
6. The Defendant’s counterclaim and claim for declaratory relief is dismissed.
7. The Court shall remain seized of this matter to address issues arising from this Judgment and Reasons including but not limited to the calculation of amounts which are due or may become due.

“Michael L. Phelan”

(highlight added)


(highlight added)

Ottawa, July 12, 2017 – A judgment was issued today by the Honourable Michael L. Phelan of the Federal Court in file T-578-13:
Summary: This was an action by The Canadian Copyright Licensing Agency (“Access Copyright”) [Access] against York University [York] to enforce an Interim Tariff first issued by the Copyright Board of Canada on December 13, 2010 (as subsequently varied during its term) in respect to copying activities engaged in by its employees in the period September 1, 2011, to December 31, 2013. York counterclaimed seeking a declaration that any such reproductions made fell within the Fair Dealing Guidelines it issued and therefore constituted the “fair dealing” exception under s 29 of the Copyright Act [Act]. The declaration sought covered all reproductions of all copyright-protected works made prior to April 8, 2013, and thereafter regardless of whether such works were part of Access’s repertoire. In the main action, the issue was “whether the interim tariff issued by the Copyright Board on December 23, 2010 as amended is enforceable against York”. In the counterclaim, the issue is: “was York’s dealings fair for the purposes of s 29 of the Act”? The net effect would be that if the Interim Tariff was enforceable and hence royalties payable, York would be exempt because of “fair dealing”.

In the main action, the Court concluded that the Interim Tariff is mandatory and enforceable against York. It found that to hold otherwise would be to frustrate the purpose of the tariff scheme of the Act and the broad powers given to the Copyright Board to make an interim decision pursuant to s 66.51 of the Act.   Furthermore, the Interim Tariff arose because of the objections to the proposed final tariff governing the photocopying at York and other post-secondary educational institutions. All interested parties had actual notice of the Interim Tariff by virtue of their participation in the tariff application process, and the Interim Tariff was never judicially reviewed.

In the counterclaim, the Court concluded that Fair Dealing Guidelines [Guidelines] do not withstand the application of the two-part test laid down by Supreme Court of Canada jurisprudence. York’s dealings with copyrighted material meets part one of the test in that it falls within the named activities in s 29 – education, research and private study. However, the Court found that the Guidelines fail an analysis of “fair dealings” and a consideration of the fairness factors. The declaration requested was therefore denied with costs to the Plaintiff.

The decision is available in English only, as delay of its issuance would be prejudicial to the public interest.  A French language summary of the conclusions is available.  A certified translation will be provided at the earliest possible time.

A copy of the judgment can be obtained via the Web site of the Federal Court:

Tuesday, July 11, 2017

Access Copyright v. York University Decision Expected Wednesday, July 12, 2017

After an extraordinary and very unusual request by York's counsel for a 48 hour advance copy of the decision and another delay beyond the "no earlier than July 7, 2017" date, the Court announced today:

Oral directions received from the Court: The Honourable Mr. Justice Phelan dated 11-JUL-2017 directing that the Court's decision in this matter will be issued on Wednesday July 12, 2017. (Direction called out to the parties) placed on file on 11-JUL-2017

(highlight added)

Watch this space.


Tuesday, July 04, 2017

My ABC 2017 Presentation and Update on Access Copyright v. York University

On June 30, 2017, I presented a Copyright Law Update at Queen’s University to the wonderful ABC group, which consists mostly of copyright librarians and officers at the post-secondary level. There were also observers from important associations interested in Canadian post-secondary education. It was a good program and I was very pleased to be invited back. Naturally, I focused mainly on fair dealing and other copyright issues and events of interest to the educational community.

The Access Copyright v. York University case was of great interest to everyone. The Court had earlier tantalizingly indicated the decision would be released “Shortly after July 1 weekend”. However, we learned at the last minute that York University had asked for a delay. Here’s their letter in which York’s counsel actually asked to get the decision 48 hours before its public release. Frankly, I’ve never heard of such a request. Even Supreme Court of Canada “lockups, which are extremely rare, give counsel at the most a one hour and fifteen minute “heads up” before decisions are released to the public at 9:45 AM and counsel cannot even communicate the contents to their client. In any event, this extraordinary request was denied but the Court did agree to delay the release until no earlier than July 7, 2017, when hopefully we all find out what the Court ruled in Phase I.

The timing here is very important to the public interest because, of course, the deadline for filing an objection to Access Copyright’s proposed tariff for 2018-2020 is July 19, 2017. Naturally, everyone wants to know what the Federal Court will have to say about whether York’s fair dealing guidelines are viable and whether York succeeds on its narrow argument that the “interim” tariff imposed at the end of 2010 is “mandatory”. For whatever reasons, York expressly told the Court that it was not necessary to rule on the whether a “final” tariff could be mandatory. I have written at length about this issue and how the Supreme Court of Canada has ruled that Copyright Board tariffs are not mandatory and the potential implications of this ruling for the York University case.

The Copyright Board has yet to rule on the seven-year-old application for a tariff for 2011 onward, and whatever happens in the York University case is likely to be appealed. So, the next hearing may be a long time getting underway. It makes little sense for it to proceed while the seven-year-old application from 2010 is still undecided and the Federal Court decision can be and likely will be appealed, whatever the outcome.

Whether in spite or because of this uncertainty, there was a lot of interest in the filing objections with the Copyright Board by July 19, 2017. One point that came up repeatedly is whether associations that have many members need to answer interrogatories on behalf each member. The answer is clearly that this is not necessarily necessary. If the association asks the Board to allow for a representative sample of members to file responses to interrogatories, such a request would likely be positively received. The Board even said so last time around – only this came too late. The request had not been made. Such requests are routine when radio or TV stations are involved, because there are hundreds of them and they obviously don’t all answer interrogatories. In any case, these points are touched on in my slides for the ABC event, which are available here and which provide some hopefully useful clickable links.