Summary of Access Copyright Membership Update Call
October 14, 2021
Review of Supreme Court of Canada Decision & Legal Update
Access Copyright v. York University – Supreme Court of Canada: On July 30, 2021, the Supreme Court of Canada (SCC) issued its decision in the litigation between Access Copyright and York University.
The case considered two legal issues:
- Whether Copyright Board of Canada-certified tariffs are mandatory or voluntary on users who copy works in Access Copyright’s repertoire.
- Whether York University’s “Fair Dealing Guidelines” were “fair” under the test for fair dealing.
The Court found that Board-certified tariffs are voluntary and not enforceable, and that it was improper for the Federal Court and Federal Court of Appeal to assess the fair dealing issue. As a result, the Supreme Court decided not to endorse the reasoning of the lower courts with respect to fair dealing and left the issue of whether York’s Fair Dealing Guidelines were “fair” unanswered.
The Supreme Court’s decision reinforces the uncertainty surrounding the scope of fair dealing and undermines the ability of creators and publishers to meaningfully enforce their rights. This decision marks the beginning of a significantly more challenging environment for creators to manage and monetize their works in an increasingly digital environment.
K-12 Litigation: In the legal action launched in 2018 by the Ontario school boards and Ministries of Education (the “Plaintiffs”) excluding BC and Quebec against Access Copyright, we remain in the document production phase. However, on August 10, 2021, following the Supreme Court’s decision in the York matter, the Plaintiffs’ counsel requested that Access Copyright pay the refund owed to the Plaintiffs and withdraw its counterclaim. They are taking the position that since Access Copyright’s counterclaim is a tariff enforcement action for the non-payment of royalty fees set out in the K-12 tariff and considering the Supreme Court’s finding that tariffs are not enforceable, Access Copyright no longer has a basis for its counterclaim.
Our position is that regardless of the Supreme Court’s finding that tariffs are not enforceable, Access Copyright’s counterclaim also includes an “equitable set-off” claim that still needs to be assessed by the Court. The basis for our “equitable set-off” claim is that although we do not contest that we owe the Plaintiffs a refund, we are setting off that refund against the payments the Plaintiffs owe Access Copyright for the years the Plaintiffs have made use of works in Access Copyright’s repertoire without payment.
Advocacy Priorities Following SCC Decision: The SCC decision underscores the critical – and urgent – need to amend the Copyright Act to fix fair dealing and enable copyright collectives to enforce tariffs against infringers. Accordingly, we continue to advocate for changes to the Copyright Act that are consistent with Recommendations 18-21 of the Standing Committee on Canadian Heritage’s 2019
Shifting Paradigms report. We are emphasizing that the industry cannot sustain another decade of uncertainty and damage and that any proposed solution needs to ensure that rightsholders are compensated for the mass and systematic copying by educational institutions.
Federal Election: We were pleased to see the Conservative Party include in their platform a pledge to “recognize and correct the adverse economic impact for creators and publishers from the uncompensated use of their works in a manner consistent with the unanimous recommendations of the Heritage Committee of the House of Commons Report in 2019.” The Liberal platform also included a more general commitment to protect creators and copyright holders by amending the Copyright Act and implementing the Artist’s Resale Right, which is a positive development for our visual artist affiliates and member organizations. It was also encouraging to see greater recognition of the needs of the writing and publishing industry this election, particularly in the Liberal commitment to invest $43 million in the sector through the Canada Book Fund, the Public Lending Right and the Canada Council for the Arts.
Other key events during the election were a culture debate featuring representatives of the major political parties organized by the Coalition for the Diversity of Cultural Expression and the opportunity to join a Zoom call hosted by Liberal candidates Steven Guilbeault and Pascale St-Onge. In both, candidates demonstrated a recognition that the SCC decision had created gaps that needed to be addressed and there was a general consensus surrounding the need for a legislative or regulatory solution.
New Campaign Launching Soon: The success of our advocacy efforts hinge on the collective action of creators and publishers. Once the new government is in place, it will be critical to convey the urgent need to restore fair compensation for educational copying. Building off key learnings from this year’s book-mailing campaign in which over 50 authors mailed a copy of one of their books to Prime Minister Trudeau (thank you to everyone who encouraged their members to get involved!), we will be rolling out a new, simplified version of the campaign once the Liberal cabinet has been named. We will be asking creators to simply share a selfie of themselves holding one of their books on their social media account(s), with a short message about why the Copyright Act needs to be amended. They will tag the Prime Minister, the Minister of Innovation, Science and Industry and the Minister of Canadian Heritage and relevant hashtags (i.e.: #IValueCdnStories and #cdnpoli). We’ll be sharing more information soon by email on how you and your members can get involved.
Prescient is in an exciting period of growth in its work.
To advance our work with the Attribution Ledger, we have been actively engaged with key stakeholders in the EU.
Our work with Imprimo, a new art-management platform for visual artists, is also progressing very well. We are collaborating with Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC), Copyright Visual Arts and Regroupement des artistes en arts visuels du Quebec (RAAV) on this project. The team has been working with a number of artists throughout the summer to gather their input for the projected launch of Imprimo to a select set of artists by end of this year.
Recently, RAAV was awarded a prize for innovation in the cultural sector in recognition of their work on Imprimo. The prize was awarded by Compétence Culture as part of its “Je célebre donc je suis” program.
Imprimo is currently operating in a closed-beta environment, but you can join the waitlist for early access here.
CARFAC will be hosting a webinar to introduce Imprimo and offer a behind-the-scenes tour on October 20 at 2:00 p.m. EDT. A registration link is available here.
Cameron Macdonald is the current Board Liaison for the Access Copyright membership. Please contact Cameron anytime at firstname.lastname@example.org, if you have questions or concerns that you wish to share from your membership.
Access Copyright Foundation is currently accepting applications for Event Grants. The deadline for applications is November 1 at 11:59 p.m. CST.
Save the Date: Next Access Copyright Membership Update Call is scheduled for Wednesday, January 12, 2022, at 1:00 p.m. EST.