A recent decision from the Federal Court of Appeal addresses the extent of fair dealing as it relates to copyright, and whether tariffs set by copyright collectives are mandatory.
York University (York) is a large university in Toronto. Access Copyright is a non-profit organization that represents a collection of copyright holders. In exchange for the payment of fees, Access Copyright grants licenses to businesses, universities, schools, and other groups to reproduce copyrighted works. These fees are then collected by Access Copyright and distributed to the copyright holders of the works.
Between 1994 and 2010, Access Copyright had a license agreement with York University under which professors at York were able to copy the works in Access Copyright’s collection in exchange for royalty payments. This license agreement was set to expire at the end of 2010.
In light of uncertainty regarding renewal of the license agreement, Access Copyright applied to the Copyright Board for an interim tariff, which was approved on December 23rd 2010.
York initially complied with this interim tariff, but in July 2011 gave notice to Access Copyright that it wished to opt out of the tariff for the upcoming school year, beginning on September 1st 2011. Instead, York created its own fair dealing guidelines to assist members of the school in complying with s. 29 of the Copyright Act. Under the guidelines, only ‘short excerpts’ could be copied. Short excerpts were defined by the university as 10% or less of a work, or no more than set threshold amounts of a work (no more than an entire encyclopedia entry, no more than an entire newspaper article or page, etc.). 
Access Copyright sued York, alleging that York had infringed copyright in works in its collection, and was therefore liable for the amounts due under the interim tariffs. York counterclaimed, seeking a declaration that all copying done pursuant to its guidelines represented fair dealing under s. 29 of the Copyright Act.
The Federal Court concluded that the tariffs imposed by Access Copyright were mandatory, and that York’s guidelines did not constitute fair dealing (2017 FC 669). This decision is an appeal from the Federal Court’s decision.
Fair dealing is an exception to copyright infringement, and is permitted by s. 29 of the Copyright Act, RSC 1985, c C-42, which reads:
Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.
What constitutes fair dealing is not defined in the Copyright Act. For this, one needs to turn to case law.
In 2012, the Supreme Court of Canada (SCC) released a decision (Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36) providing a two-pronged test for determining whether something is fair dealing:
The first is to determine whether the dealing is for the purpose of either “research” or “private study”, the two allowable purposes listed under s. 29. The second step assesses whether the dealing is “fair”. (at para 13)
At the time of the SCC’s decision, research and private study were the only purposes permitted under fair dealing. Since then, education, parody, and satire have been added to s. 29 (Copyright Modernization Act, S.C. 2012, c. 20, s. 21).
To assess whether dealing is ‘fair’, the SCC in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 set out six considerations:
(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; and (6) the effect of the dealing on the work. (at para 53)
The Federal Court of Appeal first addressed whether Access Copyright’s tariff was mandatory, and then went on to address whether York’s Guidelines constituted fair dealing.
Was the Access Copyright Tariff Mandatory?
The Court began by stating that although the copyright holders acting collectively under Access Copyright have no more legal rights than a copyright holder acting individually, the collective representation afforded by a large entity like Access Copyright gives copyright holders a significant advantage.
The Court performed a lengthy historical review of the relevant statutory provisions, and the context surrounding the historical changes made to these provisions. The Court concluded that the legislative intent remained substantially the same as it did in the early 20th century, which was that “collective societies [such as Access Copyright] are not entitled to enforce the terms of their approved tariff against non-licensees.” (2020 FCA 77 at para 202)
In its analysis, the Court stated that “Acts of infringement do not turn infringers into licensees so as to make them liable for the payment of royalties” (2020 FCA 77 at para 205), emphasizing that there is a difference between paying royalties for a license, and paying damages for infringement. Since York had opted out of the license agreement, there was no consensual arrangement in place under which non-payment of a tariff could be enforced, and Access Copyright therefore could not enforce the tariff against York.
Were York’s Guidelines Fair Dealing?
To assess whether all copying pursuant to York’s guidelines constituted fair dealing, the Court reviewed the Federal Court’s finding for each of the six factors established by the SCC regarding what constitutes fair dealing, before assessing York’s arguments that those findings were incorrect.
The Federal Court of Appeal upheld the Federal Court’s conclusion that York’s guidelines were not fair dealing, and chose not to overturn its conclusion that the quantities of copies allowed by the guidelines went beyond what would be considered fair for educational purposes.
In its analysis, the Federal Court had stated that York’s guidelines could allow “numerous chapters [to] individually be segregated for use in different courses, effectively eviscerating the copyright protection on the book” (2017 FC 669 at para 311). Interestingly, the Federal Court of Appeal characterized this analysis as having “given more importance to a non-contentious point than it deserved…. In other words, the error may be palpable but it is not overriding” (2020 FCA 77 at para 279).
Since this was an appeal of a lower court’s decision, the standard of review for a finding of fact (such as whether the amount of the copying was trivial or significant) is whether there was a palpable and overriding error made by the lower court. The standard of review for a question of law is correctness. As York did not meet these standards by showing that the Federal Court had misunderstood or misapplied the law, nor did it establish that copying pursuant to its guidelines would qualify as fair dealing, the Federal Court of Appeal dismissed York’s appeal of the Federal Court’s decision that York’s guidelines were not ‘fair’.
This decision is a significant setback for Access Copyright, calling into question the business model of organizations relying on tariffs like this.
This decision also confirms that educational institutions are not forced to pay tariffs in exchange for the use of copyrighted materials. Instead, fair dealing guidelines along with other licensing options (digital licenses, subscriptions, etc.) could be used to ensure copyright compliance.
One important takeaway of this decision is that it does not remove any of the rights that presently exist for copyright owners. When copyright is infringed, a copyright owner would still have recourse against an infringer. What this decision does affect, however, is the way that copyright compliance can be achieved by institutions.
On June 26th 2020, both parties filed leave to appeal at the Supreme Court of Canada. 
|||York University, “Fair Dealing Guidelines for York Faculty and Staff (11/13/12),” 13 November 2012. [Online]. Available: https://copyright.info.yorku.ca/fair-dealing-guidelines-for-york-faculty-and-staff-111312/.|
|||Supreme Court of Canada, “Supreme Court of Canada Bulletin of Proceedings,” 10 July 2020. [Online]. Available: https://scc-csc.lexum.com/scc-csc/bulletins/en/item/6906/index.do?q=39222.|
Authors: James Nottingham and Dana Turner-Ryan