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August 19, 2017

YUFA update on Access Copyright case

An image of a book with the title, Copyright Law in Canada, leaning on a library bookshelf (credit: The Quad, University of Alberta)

Many York faculty will have heard of the disappointing decision from the federal Court to uphold Access Copyright's lawsuit against York University. YUFA is deeply concerned with the ruling and its serious implications for educators and academic freedom. The Association will continue to support York faculty and to defend their rights as this decision is appealed.

Copyright is of signal importance to educators, who are both authors and users of published works. For this reason, the lawsuit by Access Copyright charging York University with copyright infringement has been closely monitored by copyright experts, Universities, the Canadian Association of University Teachers (CAUT), and YUFA. The federal Court's ruling in favour of Access Copyright was quickly followed by the welcome announcement that York will appeal the decision. If you have not followed the case, this FAQ provides a brief description of the history of this case and the copyright issues addressed.

What's at issue in the legal case?

Historically, universities have signed agreements with Access Copyright--a collective that represents writers, artists, publishers, and copyright owners. Under the licensing arrangement that expired in December 2010, Canadian Universities outside Quebec paid licensing fees of $3.83 per full-time (equivalent) student plus a flat 10 cents per page to Access Copyright for reproducing work covered by publishers and authors represented by Access Copyright. At that point, Access Copyright requested that the Copyright Board set a dramatically greater flat tariff of $45.00 per full-time (equivalent) student. Pending its finalization, the Copyright Board agreed to an interim tariff.

About a year later in 2012, Access Copyright and the then-Association of Universities and Colleges Canada (AUCC, since renamed Universities Canada (UC)) reached a controversial agreement on a "model license," with a tariff of $26.00 per student. York and many other post-secondary institutions did not sign on, preferring to fulfill their copyright obligations through "fair dealing" provisions, other licensing arrangements, open access publishing, and internal guidelines--all measures permissible under Canada's copyright laws according to Supreme Court decisions in recent years.

In April 2013, Access Copyright filed a suit against York, which alleged, as described in University Affairs, that the University made copies of "a substantial part" of several copyright-protected works for which the university didn't obtain appropriate clearance or pay the necessary royalties. It argues that the fair-dealing guidelines that York relied on, in part, to make the copies are "arbitrary" and "too broad." The suit named four YUFA members and one member of CUPE 3903, as well as the University.

The issue came to trial in May 2016 and the decision of the Federal Court, which went against York, was issued in July 2017. Michael Geist, one of the leading copyright experts in Canada, in commenting on the decision, notes:

For the past 13 years, Canadian copyright jurisprudence has followed a consistent trajectory. Starting with the Supreme Court of Canada's CCH decision in 2004, Canadian courts and tribunals have affirmed the need for balance in copyright and the importance of user’s rights… Yesterday, however, five years to the day of the release of the Supreme Court's copyright pentalogy, Access Copyright found a willing taker for its legal arguments. Judge Michael Phelan of the Federal Court of Canada delivered a complete victory for the copyright collective, rejecting York University's fair dealing approach and concluding that an interim tariff is mandatory and enforceable against the university…  In this particular case, there are very strong grounds for appeal… the trial judge's analysis of fair dealing is inconsistent with Supreme Court of Canada jurisprudence. The Supreme Court's emphasis on copyright balance, user's rights, and a large and liberal interpretation to fair dealing, are largely missing from the ruling.

As we know, York has announced an appeal.

What has YUFA done?

Since 2013, YUFA has been very active on this issue. We have met with the Employer on a number of occasions and sought the advice of CAUT and our legal counsel at Goldblatt Partners. Along with CAUT, we had earlier considered seeking intervenor status in the case, and we will be discussing this further with CAUT in the coming months. Our concerns to date have been twofold: to ensure that the faculty named in the suit were provided with proper legal representation and union support; and, on the larger scale, to ensure that members' academic freedom rights were protected. To this end, we have filed two grievances.

Since they were key witnesses, the named faculty members had to give up a good portion of their spring and summer last year, for trial preparation with YUFA's and the University's counsel. YUFA is seeking some redress for their time from York.

The implications of the negative decision in the Access Copyright Case for YUFA members and students are huge, not only because of the expensive tariffs, but also because of the potential loss of the freedoms we currently enjoy to make widespread use of published works, under "fair dealing." As understood by CAUT, the purpose of fair dealing "is to facilitate creativity and free expression by ensuring reasonable access to existing knowledge while at the same time protecting the interests of copyright owners. It is important that academic staff know their fair dealing rights and exercise them to the fullest extent."

In a nutshell, this is a truly important case with implications far beyond York. At this time, according to the Supreme Court, fair dealing rights exist and have not been compromised by this judgement. If the appeal is not successful, students will face dramatically increased costs, while faculty will face restrictions on choice of materials for teaching and research, as well as potentially intrusive scrutiny and monitoring.

YUFA will continue to be vigilant as the case moves forward.

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