You’ve often heard the old legal saying “hard cases make bad law.” Well, it still happens.
On July 12, 2017, a judge of the Federal Court, in the case of Access Copyright v. York University, departed dramatically from over a decade of settled copyright jurisprudence from the Supreme Court of Canada about the rights of users to make copies of protected works. Now universities, libraries, colleges, schools and educators are unsure about how to proceed. Should they stick with their current Fair Dealing policies and guidelines, or sign up for costly and potentially unnecessary copyright licenses and pass that expense on to their students? With only a few weeks before fall semesters begin, the Canadian educational sector has a copyright crisis on their hands.
Leading copyright experts were quick to condemn the ruling and to raise hope for an appeal. Professor Michael Geist wrote on his blog: “the case is likely to be appealed as the trial judge’s analysis of fair dealing is inconsistent with Supreme Court of Canada jurisprudence. The Supreme Court’s emphasis on copyright balance, user’s rights, and a large and liberal interpretation to fair dealing, are largely missing from the ruling.” Howard Knopf also discussed the subject saying: “The only good news for the Canadian educational community about the recent Federal Court decision in Access Copyright v. York University is that the judgment is, with respect, so clearly and consistently wrong that there is a strong likelihood of a successful appeal – assuming that York decides to appeal.”
WHAT IS FAIR DEALING?
So, what is fair dealing and why does it exist? Since the first copyright law was enacted in 1710 by Queen Anne, legislatures and courts have attempted to balance the economic monopoly rights of owners of protected works, with the need to advance the collective knowledge of the public through the distribution of such works. In Canada, one of those balancing mechanisms is called fair dealing. In the USA, the parallel doctrine is called “fair use,” however, both function similarly - they allow users to make copies for free.
Traditionally, fair dealing was viewed as a legal defence to a claim of infringement, to avoid liability. Today, fair dealing is characterized as “user rights.” The Supreme Court of Canada has been clear that user rights must not be unduly constrained by lower courts.
The Canadian “fair dealing” analysis consists of two steps, with six factors in the second step. Step 1 - was the unauthorized copying for one of the enumerated statutory purposes? If so, Step 2 - was the unauthorized copying “fair?”
In Step 1, the Copyright Act highlights eight purposes for fair dealing: (i) research; (ii) private study; (iii) review; (iv) criticism; (v) news reporting; (vi) education; (vii) parody; and (viii) satire. If the user fits into any of those categories, one moves to Step 2.
In Step 2, the Supreme Court of Canada has incorporated this six-factor test to assess fairness.
1. The purpose of the dealing; 2. The character of the dealing; 3. The amount of the dealing; 4. Alternatives to the dealing; 5. The nature of the work; 6. The effect of the dealing on the work.
The goal of fair dealing is to avoid a rigid application of a copyright statute and to promote the public interest in the distribution of knowledge. Each case must be reviewed for its own factual matrix and analyzed with the guidance given by the Supreme Court of Canada.
In the Access Copyright decision, the trial judge comes to certain conclusions about York University’s Fair Dealing guidelines that have no logical connection to the six-factor analysis established by the Supreme Court. The public interest in copyright balance, the purpose of users’ rights and the liberal approach to fair dealing are all paid lip service but otherwise ignored by the judge.
There are too many puzzling inconsistencies between this recent decision and the binding Supreme Court cases, to list in this blog post. However, one particular finding was that York’s Fair Dealing policy was not sufficiently enforced, which according to the Supreme Court is an irrelevant consideration. The judge seems to want copyright officers stationed next to every photocopier, policing users to ensure they comply with fair dealing guidelines.
So, what comes next? Will York appeal? It should, but will it? Time will tell.
The university has until October 2, 2017 to file an appeal. If it does not, the case will stand as “bad law” and its negative impact on the public interest will have to wait to be fixed either by legislation or a higher court.
The Copyright Act is scheduled to be reviewed by Parliament before the end of 2017. The Federal Government will likely hear about the York case from many affected sectors of Canadian society and should ensure that fair dealing remains in its crucial position of balancing user rights and owner rights.
If you have concerns about your fair dealing policy or would like more information about copyright, please contact Marc Belliveau.