York University’s Appeal of the Access Copyright Case: A Further Waste of Public Funds

On July 31 York University announced that it would appeal the Federal Court decision that had handed the university a legal rebuff and stern reprimand over its appropriation, without payment, of content from the repertoire of copyright collective Access Copyright. This appeal is unfortunate and a further waste of public funds. The university should have accepted the judgment, revised its procedures, and focussed on the business of educating students with materials that respect authors through fair compensation.

Six years after the saga began, on July 12 Mr. Justice Michael Phelan issued his verdict in the long-running Access Copyright v York University case. At issue was York’s unilateral decision to “opt-out” of an interim tariff certified by the Copyright Board of Canada that required York, along with other universities under the umbrella of Universities Canada (formerly known as the AUCC), to pay royalties for the right to reproduce in “course packs” copyrighted material produced by authors and publishers represented by Access Copyright. Instead York produced its own “Fair Dealing Guidelines” in which it set out what it considered to be the appropriate legal use of such materials by its staff and copy shops with which it contracts. York countersued to have these guidelines declared legal.

Fair dealing is an integral part of copyright legislation that allows users limited use of copyrighted material without payment for specified purposes. Among these purposes, since the new Copyright Modernization Act was implemented in 2012, is “education”. Private study and research are among other fair dealing exceptions. While legislation allows free use of copyrighted material (material produced and owned by others) for specified purposes, there are other tests that must also be applied, such as the amount, character, fairness, nature of the use and alternatives to the dealing. In meeting these tests, York’s Guidelines failed miserably. The judge in the case stated clearly “York`s own Fair Dealing Guidelines are not fair in either their terms or their application”. In his view, “It is evident that York created the Guidelines and operated under them primarily to obtain for free that which they had previously paid for”. That is the nub of the issue.

As the Access/York case ground on, most Canadian universities under the umbrella of Universities Canada dropped their licences with Access Copyright to the point that today only about 10% of students at Canadian post-secondary institutions are covered. In other words, other universities have been hiding behind the York case. Now, that façade has been stripped away.

York, and Universities Canada, have been handed a clear verdict. Instead of launching a costly and prolonged appeal to the Federal Court of Appeal or even to the Supreme Court, they should instead do the “right thing” and reach a reasonable and workable licence arrangement with Access Copyright. This would mean ceasing to fight this issue through the courts, and accepting a regime that provides wide access to copyrighted materials for a reasonable payment, in the process helping to maintain the integrity of the Canadian educational publishing market and the livelihoods of authors and others working in the publishing industry. Unfortunately York, no doubt encouraged by Universities Canada, has opted to prolong the litigation and further divert financial resources to legal fees instead of to compensating those who create the materials on which York relies to teach its students and to run its business.

Hugh Stephens resides in Victoria, BC. He writes a copyright blog www.hughstephensblog.net and is Executive Fellow at The School of Public Policy, University of Calgary