Monday, May 30, 2022

The York University v. Access Copyright Case: Reflections and What Lies Ahead


Prof. Ariel Katz and I were joint keynote speakers at the recent ABC Copyright Conference that took place virtually at Western University May 25-27, 2022. We spoke about the changes in the copyright landscape over the past decade, the challenges that lie ahead, and how to respond to them.

Last year, the Supreme Court of Canada (“SCC”) delivered its unanimous landmark decision, per Abella, J., in the case of York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII).   The SCC agreed with the intervention I made on behalf of the Canadian Association of Research Libraries and with Prof. Katz’s intervention (together with Authors Alliance) as presented by Sana Halwani and ruled that:

·         Access Copyright’s tariff as approved by the Copyright Board is not mandatory for users

·         It was unnecessary and inappropriate to issue a declaration about fair dealing in the circumstances of that case

·         Nonetheless, there were serious errors in the Courts below noted concerning their pronouncements about fair dealing, e.g. re “aggregate” copying.

Ariel and I have had a lot to say about the York University case and its lead up over the last 11 years or so, as documented in our various many blogs. Ariel’s brilliant “Spectre I”  and “Spectre II” papers have been very influential in the outcome and were cited by the SCC, along with my own 1999 paper about an alternative collective to Access Copyright.

The victory that we helped to achieve on behalf of the educational sector is now imperiled by heavy lobbying and, sadly indeed, significant misinformation spread by those would wish to limit fair dealing in the educational sector or even more generally and to make Copyright Board tariffs mandatory.

The educational sector can and must resist this lobbying and prevent the unravelling of their victory by lobbyists and by lies.

This is a winnable fight because several truths support the educational sector’s position and practices:

  • Educational institutions’ approach to fair dealing does not hinge on the 2012 amendments to the Copyright Act but are based on three Supreme Court decisions that interpreted the law before the 2012 amendment took effect (BTW, Ariel and I made an influential intervention in the Alberta case)
  • Two recent Supreme Court decisions, based on sound legal reasoning and policy considerations, holding that “mandatory” tariffs are not mandatory for users
  • The USA has hard-wired “teaching including multiple copies for classroom use” into its law in 17 USC 107 since 1976
  • The USA does not have “mandatory” tariffs
  • The long standing law in the USA underscores that fact that Canada provides equal if not better copyright protection to creators than the country from which much of the pressure to amend Canadian law to the detriment of innovation generally and the educational sector in particular is emanating
  • The Canadian education sector is spending hundreds of millions a year or more on direct licensing, acquisitions, and the creation of OER material. The fact that this money does not flow through Access Copyright is the result of the emergence of a modern and innovative marketplace that serves educational institutions much more efficiently that Access Copyright’s inefficient, obsolete, and redundant business model.
  • The material used in higher education is written predominantly by academics in Canada or elsewhere and not by authors of poetry, short stories or novels.
  • In most cases when Canadian literature is included in a syllabus, the students are expected to buy the work—and they do.
  • The publishing sector is doing well, and academic publishers are doing extremely well – even in spite of COVID. If there are any hard cases out that there that truly merit and need support, Canada has a long record of providing subsidies in the cultural sector. The Canada Council, for example, has existed since 1957.

So, Ariel and I were honored to present our keynote talks at ABC which are available here:

        Howard Knopf ABC Keynote May 25, 2022

        Ariel Katz ABC Keynote May 25, 2022

These slide shows contain multiple useful links in support of the above.

Thank you to ABC for the opportunity to make this presentation.


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