Before 2004, copyright laws in Canada only protected owners鈥 rights in their work. Enter &苍产蝉辫;(鈥CCH鈥), where the Supreme Court of Canada (鈥淪CC鈥) introduced the concept of users鈥 rights. While the concept of fair dealing had existed in some form since 1924, the created an exhaustive list of acceptable purposes for copying, including education, to the . This balancing of owners鈥 rights with users鈥 rights now plays a central role in copyright litigation. On October 15, 2020, one such case was granted leave to appeal to the SCC, that of .
Access Copyright is a collective society which administers certain copyrights on behalf of its member writers, visual artists, and publishers. Specifically, authors assign the 鈥渞eproduction鈥 and 鈥渕aking available鈥 rights to Access Copyright, which then licenses its entire repertoire (made up of the works of all of its members) to organizations such as 91亚色. Organizations , which are negotiated between the collective society and the organizations (ss.68-70.1 of the Act). These tariffs encompass specific time periods, often 2-3 years, and may or may not be certified by the Copyright Board of Canada.
Judicial History of Access Copyright and 91亚色
The case at issue revolves around the Copyright Board鈥檚 (at para 1). 91亚色 decided to stop paying the tariff mid-way through the term and instead issued fair dealing guidelines to its students, staff, and faculty (collectively, 鈥渆mployees鈥) under the belief that their activities were acceptable due to the decision in or under the newly amended Copyright Act. Access Copyright applied to the courts to enforce the tariff, and 91亚色 counterclaimed that the tariff was not properly certified pursuant to . The court was asked two questions:
- Whether the interim tariff is enforceable against 91亚色.
- Whether 91亚色鈥檚 dealings were fair for the purposes of
At the Federal Court, Justice Phelan decided in favour of Access Copyright, declaring that and that tariffs certified by the Copyright Board were mandatory (at para 356). The panel at Federal Court of Appeals reversed in part the earlier decision, finding that the tariff was not mandatory, while dismissing 91亚色鈥檚 counterclaim that its Guidelines complied with the fair dealing exception.
Extended Collective Licensing in Canada
Collective societies exist to ease the administration and licensing of copyrighted works. Canada legislates via the Copyright Act how collective societies operate and collect such fees. Outside of Canada, many countries have adopted extended collective licensing (鈥淓CL鈥) regimes, which further legislate how collective societies operate, both to protect society members and non-members on behalf of whom collective societies collect royalties. Depending on the jurisdiction, ECL offers collective societies additional powers, such as legal standing on infringement claims and the ability to issue compulsory licenses.
If not for collective societies, licensing materials would be piecemeal, with universities having to individually licence every textbook, article, and video which its employees wanted to read and make copies of 鈥 a very cumbersome task. With collective societies, universities pay a set rate to collectives, reporting on what has been used, and then the collectives pay the owners for their work. With ECL, collective societies could have increased leverage to act on behalf of authors in enforcing their statutory rights and righting any supposed imbalance brought by aspects of fair dealing.
Access Copyright is likely to argue this case in the SCC this year. Whatever decision results will undoubtedly have a lasting effect on our understanding of fair dealing in respect of education and on how collective societies operate.
Written by Rachael Glassman, Osgoode JD Candidate, enrolled in Professors D鈥橝gostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.