Canadian collecting society wages war on fair dealing

Last year, further to the Canadian Supreme Court's clarification on the application of fair dealing to research and private study (see Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37), several Canadian universities opted out of collecting society Access Copyright's model copyright licence. Access Copyright has now responded by suing Toronto's York University for copyright infringement.

Access Copyright's approach is three-pronged:

1. It claims that York's purported fair dealing guidelines authorise and encourage copying that is not supported by the law, and that there is no justification for York to operate outside the interim tariff (see its Statement of Claim).

2. It has filed an interim elementary and secondary school education tariff application with the Copyright Board of Canada. The application seeks an effective enforcement mechanism against the ministries of education and Ontario school boards for their stated intention to stop paying the royalties set by the Copyright Board.

3. It has filed a proposed secondary tariff with the Copyright Board of Canada for the period of 2014‐2017.

York is not the only university to have opted out and Access Copyright claims to be monitoring all those that have. The University of British Columbia, which felt that Access Copyright's costs were not justifiable, has gone to the effort of opening its own copyright clearance office just to ensure that it complies with copyright laws.

The backlash is understandable: according to CTV News, Access Copyright's new deal would require educational institutions to pay the collecting society CAD 26 per full-time student annually up from the previous rate of CAD 3.38, plus a 10 cents per page royalty for copying protected works.

Access Copyright says that these legal actions are a last resort and that it believes in "a strong and vibrant culture of writing, publishing, reading, teaching and learning in Canada and is exploring new ways to meet the needs of teachers and students in this new digital learning environment."

It seems to this blogger however that this is another case of a collecting society having difficulty adapting to the digital world, where per page tariffs just don't work. Access Copyright alleges that York's fair dealing guidelines are "arbitrary and unsupported" causing Michael Geist, law professor at the University of Ottawa, to say:

"To suggest that a modest fair dealing policy based on Supreme Court jurisprudence and legislative reforms is "arbitrary and unsupported" is more than just rhetoric masquerading as legal argument. It is a declaration of war against fair dealing."