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Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

On July 30, the Supreme Court of Canada released their much-anticipated judgement in [91��ɫ]. The unanimous decision, written by Justice Abella, endorses several past Supreme Court judgements including and . Perhaps one of the most important copyright decisions since the 2012 ‘’ cases, 91��ɫ reflects the Supreme Court’s intention to develop Canadian copyright law in a way that maintains a balance between users’ and creators’ rights.

Background

Historically, Canadian educational institutions negotiated licence agreements with copyright collectives Access Copyright and Copibec to fulfill their copying needs within the collectives’ repertoires. In 2010, Access Copyright sought the Copyright Board’s approval for a new proposed tariff for post-secondary education institutions of a flat fee of $45 per full-time university student and $35 per full-time college student per year. This was a drastic increase from the fees stipulated in the 1994 to 2010 licence agreement between Access Copyright and post-secondary institutions. On December 23, 2010, the Copyright Board granted Access Copyright an interim tariff at the rate of $3.38 per full-time student and $0.10 per page for course packs, receiving . In anticipation of the upcoming academic session in July of 2011, 91��ɫ chose to “opt out” of Access Copyright’s licensing agreement and rely on alternative means, particularly the “educational purpose” under the , to continue reproducing copyrighted works for their students. Like with most educational and library institutions, 91��ɫ published internal “Fair Dealing Guidelines” that interpret section 29 to help 91��ɫ faculty and staff comply with the law. Access Copyright subsequently sued for copyright infringement. 91��ɫ then counterclaimed and sought a declaration that its Fair Dealing Guidelines complied with section 29 of the Act.

In 2017, ruled in favour of Access Copyright in all regards, claiming that the interim tariff is mandatory and that 91��ɫ’s Fair Dealing Guidelines and its actual practices are not fair under section 29. In 2020, the reversed the lower court’s decision on the tariff issue, finding that tariffs set by the Copyright Board are only applicable to those voluntarily under a licence with Access Copyright and therefore not mandatory. However, on the fair dealing issue, the Federal Court of Appeal found that the lower court did not make any “palpable and overriding errors” in conducting their fair dealing analysis. 

Issues at Appeal

The Supreme Court appeal considered two issues: 1) is the tariff mandatory? and 2) if the tariff is mandatory, are 91��ɫ’s Fair Dealing Guidelines “fair” such that their activities may be covered by section 29 fair dealing?

Access Copyright’s Non-Mandatory Interim Tariff

The Supreme Court upheld the Federal Court of Appeal’s reasoning on the tariffs issue, agreeing that the interim tariff is not mandatory and thus not enforceable against 91��ɫ. They affirmed that users are free to pursue alternative methods to lawfully copy works, such as acquiring transactional or site licences or relying on section 29 fair dealing. In their reasons, they drew heavily upon arguments made by Professor Ariel Katz at the University of Toronto Faculty of Law, who asserted that where a user makes an unauthorized use, the appropriate remedy is an action for infringement—one that Access Copyright lacks standing to initiate.

Considering the Ultimate User in Fair Dealing Analyses

Although the Court deemed it inappropriate to rule on fair dealing, given that this is not a copyright infringement suit, Justice Abella nonetheless provided helpful obiter on fair dealing in Canada. Namely, she clarified that the reasoning of both the Federal Court and Federal Court of Appeal on the fair dealing issue is not endorsed. Both lower courts erred in their evaluation of the purpose of the work, by only considering the institutional perspective. As Justice Abella discussed in multiple past decisions, including Alberta, the end-user perspective must also be considered when assessing the fairness of a dealing. In this case, but for the students, there would be no copying. Therefore, the judgement must consider the students’ perspective. The institutional purpose is not completely irrelevant, but it must be interpreted in light of the end-user. Here, Justice Abella found that educational institutions have no “ulterior or commercial purpose” when copying for their students’ benefit under fair dealing, even if the institutions benefit financially by saving funds. As the first discussion of the educational purpose of fair dealing since it was introduced during the , the Supreme Court clarifies that the appropriate way to assess an educational institution’s fair dealing practices is to determine whether those practices facilitate their students’ educational purposes in a fair manner, maintaining the balance between users’ and creators’ rights.

91��ɫ adds to a growing list of copyright jurisprudence by the Supreme Court, many of which were spearheaded by the . This latest decision delivers several wins to the users’ rights community, particularly through confirming that users always have the choice to rely on section 29 fair dealing when working with copyright-protected materials. Educators and librarians across the country can breathe a sigh of relief that they may continue to lawfully offer their services, many of which rely on fair dealing, to the benefit of their students and patrons.

The post A Win for Users’ Rights: Supreme Court Finds Access Copyright Tariff Not Mandatory and End-User Perspective Must be Considered in Fair Dealing Analyses appeared first on IPOsgoode.

Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

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May 21 was a historic day for copyright fanatics around the country. Not only did the Supreme Court of Canada hear the much-anticipated appeal, an important case on the nature of copyright collective licensing and educational fair dealing, but it was also the Honourable Rosalie Silberman Abella’s final hearing as a Supreme Court Justice.

During her 17 years on the highest court in Canada, Justice Abella was instrumental in advancing users’ rights in Canadian copyright law, particularly helping develop Canada’s fair dealing jurisprudence. She wrote reasons for several landmark copyright decisions, even delivering judgements in four out of the five 2012 “” cases. Some of her most notable copyright holdings include , , and .

In Alberta, Justice Abella wrote for the 5-4 majority, performing a rigorous analysis of the fair dealing test as laid out in The decision interpreted fair dealing for the purpose of private study. Justice Abella, for the majority, found that the correct way to interpret the purpose of a dealing is to consider the perspective of the end-user, in this case, students. When teachers photocopy short excerpts of works to distribute to students as part of class instruction, their dealings qualify as fair dealing for the purpose of facilitating students’ private study.

In SOCAN, Justice Abella once again took the pen to deliver the judgements of the unanimous court. Like Alberta, the case concerned the proper interpretation of fair dealing, this time for the purpose of research. Looking through the perspective of the ultimate user, music stores providing short previews of music may be considered fair dealing for the purpose of research by enabling consumers to determine what they wish to purchase. The Court emphasized that upholding users’ rights was “central to developing a robustly cultured and intellectual public domain.”

In Keatley, Justice Abella affirmed the importance of balancing creators’ rights with users’ rights, claiming that all provisions of the Copyright Act must be interpreted with this balance in mind “so that the Copyright Act continues to further the public interest.” In the decision, the Supreme Court interpreted section 12 of the Copyright Act, which deals with Crown copyright. Though they ultimately found the Crown had copyright, they clarified that Crown copyright has a narrow scope and is limited to situations where the Crown took a substantial role in the creation or dissemination of the work.��

Users’ rights are still a growing concept in Canadian copyright law. Though they were first introduced in the , through duplicating the fair dealing section 2(1)(i) of the U.K.’s , users’ rights did not gain the same consideration as creators’ rights until the early 2000s following the decision in . Here, the Supreme Court affirmed that copyright is “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”

Justice Abella’s decisions in Alberta, SOCAN, and Keatley provide guidance on interpreting the fair dealing provisions in section 29 of the Copyright Act; they are to be given a large and liberal interpretation and should be considered not as mere exceptions but as users’ rights. According to Justice Abella, the fair dealing component of Canada’s copyright law is “,” symbolizing the importance of the users’ rights framework in balance with creators’ rights.

When Justice Abella was appointed to the SCC in 2004, section 29 did not include the purposes of education, satire, and parody. These were introduced during the to the Act and have yet to be interpreted by the Supreme Court.

One of the major issues on appeal in 91��ɫ is how to properly interpret the educational purpose of fair dealing. The copyright collective Access Copyright argues that 91��ɫ’s copying of works to create course packs is to alleviate financial burdens on the university. In contrast, 91��ɫ argues that their copying falls under fair dealing since it is to facilitate the education of their students, as the ultimate users. Given the jurisprudence, it seems likely the Supreme Court will rule in favour of 91��ɫ, at least on the fair dealing issue.

Although a decision for 91��ɫ has yet to be released, it is quite fitting that possibly the last decision Justice Abella will pen for the Supreme Court is on a field she has transformed over the past two decades. It is fair to say the Canadian copyright community, especially advocates of users’ rights, will sorely miss Justice Abella on the bench.

The post The Fairest of Them All: Justice Abella’s Legacy in Canadian Copyright Law appeared first on IPOsgoode.