Copyright Consternation & Confusion on Canadian Campuses as York Cogitates its Appeal

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The Canadian educational community awaits York University’s Notice of Appeal from the July 12, 2017 decision of the Federal Court in Access Copyright v. York University. Regrettably, in the meantime, two major universities – namely Western and York itself – have recently issued copyright statements that appear to be premature, ill-considered and even incorrect reactions to the York decision.

Western appears to have taken upon itself an automated total “book burning” approach to pre-existing online course material. Apparently, instead of relying on the general users’ right fair dealing provision in s. 29 of the Copyright Act, it has slavishly followed the destruction provision of the limited and arguably ill-conceived, poorly drafted and unnecessary “lesson” exception in s. 30.01. Such a seemingly misplaced reliance is directly contrary to the unanimous ruling of the Supreme Court of Canada at para. 84 of the CCH decision, where the Court held that it is unnecessary to rely on a specific exemption when the general fair dealing provision is available.  Obviously, any archived course material that has been legally posted with permission, by way of fair dealing, or otherwise does not need to be deleted. Western’s denial that this has anything to do with the York decision is unconvincing in light of an earlier announcement and, frankly, rings hollow in terms of the newly stated rationale of “system maintenance”.

Perhaps even more astonishingly, York issued the following overreaching and incorrect prohibition just 8 days after the decision was released: “Copyright law does not permit downloaded files (PDFs, etc.) to be loaded directly into Moodle or other course web sites.” Since when does copyright law categorically prohibit the uploading of “downloaded files” to a course website? Such uploading and sharing may very well be done legally, for example on the basis of permission, an implied right, pursuant to users’ fair dealing rights, or because the work may be in the public domain.

Both of these announcements are bound to cause considerable consternation and confusion just as classes are about to begin. The source for these highly problematic pronouncements is unclear in both instances. If two such high-powered institutions with access to so much copyright expertise (which, in the case of law faculty, was probably not called upon) can overreact in this manner, one shudders to think what institutions with less available expertise will be doing.

It may be noted that Access Copyright has so far refrained from availing itself of Justice Phelan’s unusual invitation to “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.” Instead, York seems only too eager to effectively enjoin itself from what appears to be perfectly normal and indeed essential pedagogical practice.

York University has publicly committed to appeal the July 12, 2017 judgment of the Federal Court. Although it has until October 2, 2017 to file such a document (because July and August do not count for this time calculation), the normal deadline is 30 days after the decision. It is to be hoped that York does not delay much longer as the fall term begins. Such a document would, at least, provide the academic community with a “complete and concise statement of the grounds intended to be argued”, as required by the Federal Courts Rules. This may provide some further insight into how York is reacting to the ruling and what York believes it can overturn in this decision and generally on what basis. It would also, crucially, enable potential interveners to further assess whether and how they may wish to apply for leave to intervene in order to assist the Court with respect to arguments that could potentially be instrumental in determining the outcome (for example, see Prof. Katz’ blog here).

HPK

August 31, 2017:

PS - Following the above posting, York has replaced the above incorrect statement with the following:

Many of York University's licences do not permit copyright-protected content to be uploaded directly to Moodle or other Learning Management Systems.

That statement is somewhat ambiguous and hopefully does not suggest that a licensor can impose any conditions on works not covered by the particular licence. Moreover, the issue of whether a licensor can impose enforceable restrictions on users' fair dealing rights as provided by statute is an open question, particularly in light of two Supreme Court of Canada decisions. More about that another day.