Copyright Law Update

OUCEL Summer Institute 2017

The York University Case
August 17, 2017
University of Ottawa

HOWARD P. KNOPF
Counsel
MACERA & JARZYNA, LLP
OTTAWA, CANADA

(some of this material has appeared before on my blog and/or in presentations elsewhere)
(views are personal and not necessarily those of my firm or clients and are not legal advice)
 What I will cover
What is Fair Dealing?
Three Supreme Court of Canada cases on Fair
Dealing
Supreme Court of Canada on Mandatory
Tariffs
Copyright Board re Access Copyrights Post
Secondary Tariff
How the Universities and Colleges Reacted
The Access Copyright v. York University
Litigation
 The SCC Fair Dealing Trilogy
CCH Canadian Ltd. v. Law Society of Upper Ca
nada
, [2004] 1 SCR 339, 2004 SCC 13
Society of Composers, Authors and Music Publi
shers of Canada v. Bell Canada
, [2012] 2 SCR 326, 2012 SCC 36
Alberta (Education) v. Canadian Copyright Lice
nsing Agency (Access Copyright),
[2012] 2 SCR 345, 2012 SCC 37
 CCH Takeaways
49Asanintegralpartoftheschemeofcopyrightlaw,thes.29fairdealingexceptionis
alwaysavailable.Simplyput,alibrarycanalwaysattempttoprovethatitsdealings
withacopyrightedworkarefairunders.29oftheCopyrightAct.Itisonlyifalibrary
wereunabletomakeoutthefairdealingexceptionunders.29thatitwouldneedto
turntos.30.2oftheCopyrightActtoprovethatitqualifiedforthelibraryexemption.
56Itmaybepossibletodealfairlywithawholework.[e.g.anentireacademicarticle]
63Thisraisesapreliminaryquestion:isitincumbentontheLawSocietytoadduce
evidencethateverypatronusesthematerialprovidedforinafairdealingmanneror
cantheLawSocietyrelyonitsgeneralpracticetoestablishfairdealing?Iconcludethat
thelattersuffices.Section29oftheCopyrightActstatesthat[f]airdealingforthe
purposeofresearchorprivatestudydoesnotinfringecopyright.Thelanguageis
general.Dealingconnotesnotindividualacts,butapracticeorsystem.This
comportswiththepurposeofthefairdealingexception,whichistoensurethatusers
arenotundulyrestrictedintheirabilitytouseanddisseminatecopyrightedworks.
Personsorinstitutionsrelyingonthes.29fairdealingexceptionneedonlyprovethat
theirowndealingswithcopyrightedworkswereforthepurposeofresearchorprivate
studyandwerefair.Theymaydothiseitherbyshowingthattheirownpracticesand
policieswereresearch-basedandfair,orbyshowingthatallindividualdealingswith
thematerialswereinfactresearch-basedandfair.
70Theavailabilityofalicenceisnotrelevanttodecidingwhetheradealinghasbeen
 CCH the Six Factors
1. The purpose of the dealing,
2. The character of the dealing,
3. The amount of the dealing,
4. The nature of the work,
5. Available alternatives to the dealing and
6. The effect of the dealing on the work
are all factors that could help determine whether or not a dealing is
fair. These factors may be more or less relevant to assessing the
fairness of a dealing depending on the factual context of the allegedly
infringing dealing. In some contexts, there may be factors other than
those listed here that may help a court decide whether the dealing
was fair.
 SOCAN v Bell Takeaways
[22] Limitingresearchtocreativepurposeswould

alsoruncountertotheordinarymeaningofresearch,
whichcanincludemanyactivitiesthatdonotdemand
theestablishmentofnewfactsorconclusions.Itcan
bepiecemeal,informal,exploratory,orconfirmatory.It
caninfactbeundertakenfornopurposeexcept
personalinterest.Itistruethatresearchcanbeforthe
purposeofreachingnewconclusions,butthisshould
beseenasonlyone,nottheprimarycomponentofthe
definitionalframework.
 Alberta v. Access Copyright Takeaways
[25]Similarly,photocopiesmadebyateacherandprovidedtoprimaryand
secondaryschoolstudentsareanessentialelementintheresearchandprivatestudy
undertakenbythosestudents.Thefactthatsomecopieswereprovidedonrequest
andotherswerenot,didnotchangethesignificanceofthosecopiesforstudents
engagedinresearchandprivatestudy.
[26]Nor,withrespect,doIacceptthestatementmadebytheBoardandendorsed
bytheFederalCourtofAppeal,relyingonUniversityofLondonPress,thatthe
photocopiesmadebyteachersweremadeforanunfairpurposenon-private
studysincetheywereusedbystudentsasagroupinclass,andnotprivately.
Asdiscussedabove,theholdingwassimplythatthepublishercouldnothidebehind
thestudentsresearchorprivatestudypurposestodisguiseaseparateunfair
purposeinthatcase,acommercialone.Thecourtdidnotholdthatstudentsina
classroomsettingcouldneverbesaidtobeengagedinprivatestudy.
[27]Withrespect,thewordprivateinprivatestudyshouldnotbeunderstood
asrequiringuserstoviewcopyrightedworksinsplendidisolation.Studyingand
learningareessentiallypersonalendeavours,whethertheyareengagedinwith
othersorinsolitude.Byfocusingonthegeographyofclassroominstructionrather
thanontheconceptofstudying,theBoardagainartificiallyseparatedtheteachers
Canadian Broadcasting Corp. v. SODRAC
Canadian Broadcasting Corp. v. SODRAC 2003 Inc. 2015 SCC 57 (November
26, 2015) See my blog.
Rothstein, J. re mandatory issue:

(112) Iconcludethatthestatutorylicensingschemedoesnotcontemplatethat
licencesfixedbytheBoardpursuanttos.70.2shouldhaveamandatorybinding
effectagainstusers.

(113)IfindthatlicencesfixedbytheBoarddonothavemandatorybinding
forceoverauser;theBoardhasthestatutoryauthoritytofixthetermsof
licencespursuanttos.70.2,butauserretainstheabilitytodecidewhetherto
becomealicenseeandoperatepursuanttothatlicence,ortodecline.

Why does this apply a fortiori re the Copyright Board?

Transportation analogy
 Access Copyright v. York U.
Access Copyright v. York U. Final three days of
argument re Phase I took place on June 22-24,
2016 in Ottawa. Decision released July 12, 2017.
Main issues include:
Is the interim tariff on which this litigation is based
mandatory?
Are York Us fair dealing guidelines sustainable?
Note that York argued only on the narrow basis
that an interim tariff cannot be mandatory. Told
that Court that it neednt rule on final tariffs.
Some possible scenarios
Appeals and interventions?
 What the Court Ordered
JUDGMENT
FOR THE REASONS issued this day, IT IS ORDERED AND ADJUDGED that:
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 Defendants 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
Judge
(emphasis added)
 The Mandatory Tariff Issue
What is a tariff?
The transportation analogy
Mandatory for Access Copyright but not for
users
Why did York U not fully and forcefully make
this point?
See Prof. Katz blog for possible explanations
and questions that must be asked
 Access Copyright @ Copyright Board Post-
Secondary Tariff
Access Copyright Board Post-Secondary Tariff Copyright Board
Hearing took place January 2016. Decision is pending. This is the mega
tariff hearing that AUCC and ACCC withdrew from, leaving the matter
unopposed for practical purposes.
They have spent almost three million dollars that we know about to
mid-2012 only
to abandon their members midway through this historic hearing and,
even worse still, to withdraw their objections with no apparent
concession on the part of AC. Indeed, the model licenses that they had
earlier agreed upon have been widely disavowed by their members.
Still no decision from Copyright Board 1.5 years after hearing and
seven years after case began for 2011-2018
See my blog here. And here.
New proposed Tariff filed for 2018-2020
Deadline for objection is July 19, 2017
 Problems with Universities Canada
Guidelines
Criticism of Universities Canada approach to
Fair Dealing
Overall Guidelines
Application Documents
 Universities Canada Fair Dealing Policy for
Universities
Guidelines
1. Teachers, instructors, professors and staff members in non-profit universities may communicate and reproduce, in paper or electronic form, short
excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire or parody.
2. Copying or communicating short excerpts from a copyright-protected work under this Fair Dealing Policy for the purpose of news reporting,
criticism or review must mention the source and, if given in the source, the name of the author or creator of the work.
3. A copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course:
(a) as a class handout
(b) as a posting to a learning or course management system that is password protected or otherwise restricted to students of the university
(c) as part of a course pack
4. A short excerpt means:
(a) up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work)
(b) one chapter from a book
(c) a single article from a periodical
(d) an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work
containing other artistic works
(e) an entire newspaper article or page
(f) an entire single poem or musical score from a copyright-protected work containing other poems or musical scores
(g) an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work
provided that in each case, no more of the work is copied than is required in order to achieve the allowable purpose.
5. Copying or communicating multiple short excerpts from the same copyright-protected work, with the intention of copying or communicating
substantially the entire work, is prohibited.
6. Copying or communicating that exceeds the limits in this Fair Dealing Policy may be referred to a supervisor or other person designated by the
university for evaluation. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on
all relevant circumstances.
7. Any fee charged by the university for communicating or copying a short excerpt from a copyright-protected work must be intended to cover only
the costs of the university, including overhead costs.
 Better Guidelines
U of T, or UBC or Western just to take some examples.
Moreover, the U of T fair dealing guidelines provide a
useful Step-by-Step Approach to Determining if the
Copying or other Dealing is Permitted and permits a
degree of flexibility as to what constitutes a short
excerpt. The UBC document includes a useful flow chart.
No such clear and helpful guidance is found in these
AUCC documents, despite their great overall length.
See my blog here.
 Conclusion
The AC v York U case potentially can cause
chaos on Canadian campuses unless reversed
on appeal
Interventions may be necessary to assist the
Federal Court Appeal by ensuring that all
essential arguments are made fully and
forcefully
Questions?