Canadian licensing agency victorious against York University
A Canadian licensing agency has emerged victorious against Toronto-based York University in a royalties dispute.
On Wednesday, July 12, the Federal Court of Canada held that the university’s fair dealing guidelines do not excuse it from paying royalties to Access Copyright.
Access Copyright was seeking to enforce an interim tariff, first issued by the Copyright Board of Canada in December 2010, in respect of copying activities by the university’s employees who had used copyrighted material as part of course packs.
York counterclaimed, arguing that any reproductions made fell within its guidelines and constituted the “fair dealing” exception under section 29 of the Copyright Act.
According to Justice Michael Phelan, the interim tariff was mandatory and enforceable against York.
“To hold otherwise would be to frustrate the purpose of the tariff scheme of the act and the broad powers given to the Copyright Board to make an interim decision pursuant to section 66.51 of the act, and to choose form over substance,” he said.
The court also held that York’s guidelines were not fair in either “their terms or their application” and failed to satisfy the two-part test laid down by Supreme Court of Canada jurisprudence to determine this issue.
Although York’s dealings with copyrighted material met one part of the test—in that they fell within the named activities in section 29 (education, research and private study)—the activities failed to meet the other part of the test.
The remaining factors that needed to be considered were the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the work, and the effect of the dealing.
Phelan added: “The fact that the guidelines could allow for copying of up to 100% of the work of a particular author, so long as the copying was divided up between courses, indicates that the guidelines are arbitrary and are not soundly based in principle.”
York University said it takes "matters of copyright law and licensed usage very seriously".
It added: "We are disappointed in the outcome. The university will carefully review the reasons for the decision over the coming days and determine our next appropriate steps."
Roanie Levy, CEO and president of Access Copyright, said: "The court struck the right balance between the public good that is education and the need to reward creators to ensure that this public good continues to be well supported by quality Canadian content."
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