The Canadian Federal Court of Appeal recently issued a decision allowing York University's appeal against a ruling that York University was required to pay royalties for its copying activities in York University v. The Canadian Copyright Licensing Agency (Access Copyright), 2020 FCA 77.
Federal Court Proceeding
The original plaintiffs, the Canadian Copyright Licensing Agency (Access Copyright), alleged that York University was obligated to pay royalties to copyright owners for copying protected works, such as textbooks, according to a tariff approved by the Copyright Board of Canada. At the Federal Court of Canada, York University asserted that 1) it was not bound by the tariff; and 2) it was exempted from having to pay royalties because its copying fell under the fair dealing exception to copyright. York University was unsuccessful on both counts in the Federal Court.
Court of Appeal Proceeding
The Court of Appeal noted that tariffs set by copyright collectives such as Access Copyright was effective only to bind licensees. In the present case, because York University was not a licensee and because Access Copyright was not suing York University for copyright infringement, Access Copyright is unable enforce the tariff against York University. York University was therefore successful on this ground of appeal.
The Federal Court of Appeal affirmed the Federal Court's decision that the level of copying undertaken and permitted by York University's guidelines was “mass and massive". This level of copying was therefore not "fair" when no compensation is paid. Furthermore, the Court found a causal link between York University's copying and a drop in sales of the copyrighted works. Nevertheless, because of the Court's finding on the non-enforceability of the tariff, York University was not bound to pay royalties on the basis of the tariff.
This decision offers useful copyright jurisprudence for determining the rights of creators and authors in relation to the rights of post-secondary institutions.
Originally published by Oyen Wiggs, April 2020
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