York v Access Copyright: Continuing the Push for Recognition of Users in Copyright Law
Yasmin Masoudi, 3L, Volume 80 Senior Editor
In York University v Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII) (York), the Supreme Court of Canada considered whether compliance with tariffs established under the Copyright Act, RSC 1985, c C-42 (“Copyright Act”) was mandatory. The Court also chose to clarify the role of fair dealing in obiter dicta. This is one of many recent cases in which the Court drew attention to the importance of users’ rights. Essentially, users have a more equal claim to the use of copyrighted materials, relative to copyright owners, than courts have previously acknowledged. As the Court continues its departure from historical author-centric views of copyright law, it seems to be urging lower courts to follow its lead more closely.
Background
The Court’s decision in York focused on the enforceability of a tariff against York University (“York”) by Access Copyright (“Access”). Access is a collective society, meaning it administers the rights of creators or copyright owners. Under the Copyright Act, collective societies can file tariff proposals with the Copyright Board (the “Board”) and negotiate agreements for royalties. Access filed a tariff proposal with the Board relating to copyrighted materials that York’s professors used for instruction. When York refused to sign onto the tariff, Access sought to enforce the tariff’s terms against the university.
At trial, Access claimed that the tariff created a mandatory legal relationship between universities and itself. This meant that York would need to pay royalties after a single unauthorized use of Access’ works, regardless of whether it was a licensee or not. York counterclaimed for a declaration that acts of copying that occurred within its fair dealing guidelines constituted fair dealing under the Copyright Act.
The Federal Court (FC) held that the interim tariff was enforceable against York, while the Federal Court of Appeal (FCA) held that the tariffs were voluntary for users and that the remedy against non-licensees should be an infringement action. On the issue of fair dealing, the FC held that York’s guidelines and actual practices did not constitute fair dealing, and the FCA dismissed York’s appeal on this issue.
The Supreme Court’s Decision
The Supreme Court held that the Board-approved tariff was not enforceable against York, as it was a user that chose not to be a licensee. Although Access was required to provide licences in accordance with the terms of tariffs, it could not force such a licence on users (York at para 30). The Court noted that where a user makes an unauthorized use of a work, the appropriate remedy is an infringement action (York at para 30).
On the issue of fair dealing, the Court refused York’s request for declaratory relief. This was because the request was connected to York’s defence against enforceability of Access’ tariff, which the Court had already held to be unenforceable. Ultimately, there was no live dispute between the proper parties (York at para 83).
Despite its refusal to grant declaratory relief, the Court still commented on the fair dealing analysis. The Court outlined the framework for assessing fair dealing under section 29 of the Copyright Act from CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 (CanLII) (CCH). There is a well-established two-part test for fair dealing: “[t]he party invoking fair dealing must prove first that the dealing was for an allowable purpose and, second, that it was fair” (York at para 96). Courts consider the following non-exhaustive factors when assessing fairness: purpose of the dealing; character of the dealing; amount of the dealing; alternatives to dealing; nature of the work; and effect of the dealing on the work (York at para 96).
Abella J noted that courts’ fairness assessments should not focus solely on the “institutional perspective” (York at para 89). The “institutional perspective” involves the university as an educational institution and excludes the perspective of its students. The lower courts erred in failing to consider the perspective of students who were actually using the materials in question, which impacted the courts’ evaluations of multiple fairness factors and led to errors in their analyses. As will become apparent below, Abella J’s emphasis on the students’ perspective pushes courts to expand on the scope and importance of the users’ role in copyright law.
Analysis: Role of Users in York and Copyright Law
Although the Court did not engage in a fair dealing analysis in this case, its comments on users’ rights and their role more generally throughout the decision emphasize the importance of users to the conception of copyright law. However, this is not a new development in York, and in fact, it has been well-established in numerous Supreme Court decisions to date. The Court has repeatedly drawn attention to the importance of users’ rights. The fact that it continues to comment on this issue time and again suggests that many lower courts and tariff-setting boards have continually failed to get the message by giving improper weight to users’ rights in their decisions.
A. Shifting Away from Author-Centric Views
The Court in York noted that the fair dealing doctrine reflects a “move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace” (York at para 90). On this author-centric view, courts construed fair dealing as a narrow exception to the otherwise unfettered rights of copyright holders.
Abella J’s comments in York confirmed that fair dealing is not so much an exception to copyright as a right unto itself. This is not a new development. The Court first recognized this central role of fair dealing in CCH, holding that, “[i]n order to maintain the proper balance between the rights of a copyright owner and users’ interests,” courts must not construe the fair dealing defence restrictively (CCH at para 48). Instead, as Professor Ariel Katz observes in “Fair Use 2.0: The Rebirth of Fair Dealing in Canada”, fair dealing should be given large and liberal interpretation. Professor David Vaver notes in “Copyright Defenses as User Rights” that various Supreme Court decisions since CCH have represented “a ‘move away from an earlier author-centric view’ to one that emphasizes user rights as an important tool to balance ‘protection and access’ sensitively” (p. 669). Accordingly, York simply confirms a long-standing trend towards broadening the scope of users’ rights.
The Court in York again noted that courts and tariff-setting boards must first understand the copyright balance before applying the fair dealing doctrine (York at para 91). Citing Théberge v Galerie d'Art du Petit Champlain inc., 2002 SCC 34 (CanLII) (Théberge), Abella J recalled that “[e]xcessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole” (York at para 92). Instead, Abella J urged for a proper balance, one which ensures that “creators’ rights are recognized, but authorial control is not privileged over the public interest” (York at para 93).
One can see the well-established push away from author-centric views in the Court’s jurisprudence. Yet, as York demonstrates, the Court continues to feel compelled to remind lower courts of this fundamental shift.
B. Role of Users in Copyright Law
In York, the Court reaffirmed the central role of users in the realm of copyright law. Citing its earlier Bell decision, the Court noted that the fair dealing doctrine is “[o]ne of the tools employed to achieve the proper balance between protection and access in the Act” (emphasis added) (York at para 90). Abella J made a similar point in Keatley Surveying Ltd v Teranet Inc, 2019 SCC 43 (CanLII) (Keatley), where she noted that courts’ balancing of rights in fair dealing “presents a clear snapshot of the general approach to copyright law in Canada” (Keatley at para 46).
Copyright law, more broadly, has public interest goals (York at para 91). The Court in Théberge portrayed copyright as “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” (Théberge at para 30). As Professor Daniel Gervais stated in “The Purpose of Copyright Law in Canada”, the Court has provided a narrative that “copyright’s purpose is not to protect authors per se, based on a natural right theory or otherwise, but to protect them to the extent necessary to obtain just rewards for creators while promoting the public interest […] preferably without any deadweight or unjustified social cost” (p. 337). Accordingly, courts should not construe the copyright regime in a way that circumscribes users’ rights more than is necessary to promoting the sharing of works.
As an example of the Court’s concern for users more generally in York, consider its underlying reasoning against imposing mandatory tariffs: “[a] user is entitled to obtain its rights through other means and, if the user makes an unauthorized use, the appropriate remedy is an action for infringement” (York at para 30). This suggests that while a user is not free to copy anything at any time, since they are still subject to actions for infringement, users still have a right to choose how to clear their copyright obligations. As the Court noted, Access’ mandatory tariff argument would render “a university’s freedom to clear its copyright obligations without involving Access Copyright completely illusory” (York at para 72). This concept demonstrates the expansive scope of the users’ role within copyright law, as it seems to reach beyond a simple right to use the information.
The Court also stated that the price-setting powers of the Board have a protective purpose; namely, to “protect users from the potential exertion of unfair market power by collective societies” (York at para 67). The Court observed that this user-protection purpose has persisted through numerous amendments to the Copyright Act, dating pack to the 1936 amendments (York at para 67). This point draws attention to the importance of users in contexts beyond fair dealing. It also underscored the reasoning for rejecting mandatory tariffs, as the Court noted “[i]t would be discordant with this [protective] purpose to empower a society to foist a licence on an unwilling user” (York at para 54).
Ultimately, the Court’s decision in rejecting Access’ mandatory tariff argument seemed to be primarily concerned with the protection of users. The Court noted: “[i]nstead of operating as a part of a scheme designed to control collective societies’ potentially unfair market power, Access Copyright’s interpretation would turn tariffs into a plainly anti-competitive tool, boosting collective societies’ power to the detriment of users” (York at para 71). Thus, Abella J ended up tipping the balance in favour of users in this case, once again demonstrating that courts should give serious consideration to the role of users in copyright law.
C. Fair Dealing and the Push Towards Greater Recognition of Users
The Court’s comments on the fair dealing doctrine seem to be a natural extension of its discussion surrounding users’ roles more generally within copyright law. The Court conceptualizes fair dealing as users’ rights, and so the principles that the Court draws on with respect to protecting users seem to underscore its push for greater recognition of these rights.
The Court notably emphasized its rejection of the lower courts’ reasoning related to fair dealing and stated that “[t]here are some significant jurisprudential problems with [the fair dealing] aspects of their judgments that warrant comment” (York at para 87). Namely, the concept of ‘users’ within the educational context should extend beyond the institution and include the students who end up using the materials as well. The gravity of leaving out these users’ perspective is reflected in the Court’s comment that “[b]y anchoring the analysis in the institutional nature of the copying and York’s purported commercial purpose, the nature of fair dealing as a user’s right was overlooked and the fairness assessment was over before it began” (York at para 89).
While the Court does not suggest that the institutional context be swept aside, it does draw attention to the fact that “instructors are facilitating the education of each of their individual students who have fair dealing rights” (York at para 99). This correction supports the importance of giving users’ rights a wider scope rather than confining it to the institution itself.
This is not the first time the Court has tried to emphasize the role of user rights in copyright. The Court noted that the objective of its comments on fair dealing was “to correct some aspects of the reasoning from the courts under review which, respectfully, depart from this Court’s jurisprudence” (York at para 88). In fact, Abella J explicitly pointed out that the Supreme Court had urged the same emphasis on students’ rights as users in Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (CanLII) (Alberta (Education)). She stated that “both the Federal Court and the Federal Court of Appeal [in York] erred in an almost identical fashion to the Copyright Board in Alberta (Education)” (York at para 100).
Additionally, the Court suggested that the FC’s analysis of the “amount of dealing” fairness factor also left aside the integral concept of a user’s right to fair dealing. In fact, the Court noted that Bell directly contradicted the FC’s point that “an author’s entire work could end up being distributed in the aggregate” under York’s guidelines (York at para 104). In an attempt to rebalance the analysis to account for users’ rights, the Court drew on both Bell and Alberta (Education) to restate its point that “[s]ince fair dealing is a ‘user’s right, the ‘amount of dealing’ factor should be assessed based on the individual use, not the amount of the dealing in the aggregate” (York at para 104).
York is the most recent in a long line of cases wherein the Court has attempted to clarify the role of users’ rights under copyright law. Despite the Court’s consistent exhortations that users’ rights are not secondary to owners’ rights, lower courts are not getting the message.
The Potential Message to Lower Courts
The Court’s continuous comments and corrections on the importance of users’ rights suggests that the balance between copyright owners’ rights and users’ rights is still not where the Court intends it to be. In “‘An Hundred Stories in Ten Days’: COVID-19 Lessons for Culture, Learning, and Copyright Law”, Professor Carys Craig and Bob Tarantino briefly drew attention to the Court’s repetition of these concepts. They indicated that the Court has “repeatedly assured us” that non-infringing uses are users’ rights (p. 586), and that it has “repeatedly explained” that users’ rights “must not be interpreted restrictively” (p. 590).
There may be an important meaning behind the Court’s repetitions, and lower courts should pay attention to it. York is now yet another case where the Court has emphasized users’ rights, and it has done so extensively throughout the decision. Its message seems clear: courts must take the role of users in copyright law more seriously.
York was a unanimous decision, which highlights the strength of its underlying message. In “Copyright Vindication: Supreme Court Confirms Access Copyright Tariff Not Mandatory, Lower Court Fair Dealing Analysis Was ‘Tainted,’” Professor Michael Geist noted: “despite significant changes in the membership of the court [since CCH], the principles of balanced copyright, user’s rights, and a commitment to fair dealing has remain unchanged.” Thus, the Supreme Court’s general trend and continuous emphasis on the role of users means that courts should generally give more consideration to balancing users’ rights in copyright cases.
Ultimately, York demonstrates that the Court will continue to make broader points about the important role of users in copyright decisions, potentially expanding the scope of users’ rights, until lower courts take up its message.