In a rare copyright decision, the Supreme Court unanimously held that copyright collectives cannot charge fees to those that decline their contracts. The ruling is expected to affect how a number of copyrights are administered in Canada.
The dispute arose from a lawsuit by Access Canada against York University.(1)
Access is a collective society that represents many publishers. For years, York held a licence that let professors and students copy works (eg, textbooks) in the Access collection. York declined to renew the licence in 2011, saying that it would rely on the fair dealing exceptions in the Copyright Act to make copies going forward.
In the lawsuit, Access claimed that York should pay copying fees set by the Copyright Board – called "tariffs" – even though York had not agreed to a licence. York said that the tariff was not enforceable against it because it had not agreed to be bound and counterclaimed for a declaration that its copying was fair.
On the tariff question, the Supreme Court agreed with York. As the Copyright Act is silent on the question of from whom collectives may collect royalties, the Court held that only those that agree to a licence are bound to pay the associated fees set by the Copyright Board.
However, the Court declined to decide whether York's copying was fair. Fair dealing arises when infringement is alleged and Access had not sued for infringement but for refusal to pay the tariff. The Court noted that in this case, the various copyright owners would have standing to sue for infringement. The question of fair dealing therefore did not require an answer. The Court nevertheless offered some guidance for the future, emphasising that fair dealing is a user's right that must consider both an institution's purpose when copying and the end user's right to (fairly) receive material.
The case is important for both owners and users of copyrighted works in Canada. It establishes that a collective's licence and its associated tariffs are not mandatory, while reminding those who opt out and copy without permission that they may be liable for infringement, subject to any defences.
For further information on this topic please contact Reagan Seidler or Daniel Anthony at Smart & Biggar by telephone (+1 613 232 2486) or email ([email protected] or [email protected]). The Smart & Biggar website can be accessed at www.smartbiggar.ca.
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