Federal Court of Appeal decision a mixed outcome for Canadian creators and publishers

Friday, April 24, 2020

TORONTO (April 24, 2020) – The Federal Court of Appeal’s decision issued on April 22 related to the legal action between Access Copyright and York University presents a mixed outcome for Canadian creators and publishers.

In its ruling, the Court has confirmed the lower-court decision that the fair dealing guidelines adopted by York do not meet the Supreme Court’s test for fair dealing, and has not concurred with the finding that tariffs certified by the Copyright Board of Canada are mandatory.

The Court’s decision on fair dealing struck the right balance between the public good that is education and the need to reward creators so that teachers and students continue to be well supported by quality Canadian content.

Regretfully, this important win for creators and publishers starkly contrasts with the finding that tariffs are not mandatory. This is deeply detrimental to a well-functioning copyright regime by rendering the tariff process largely futile. It also deepens the challenges experienced by content creators and publishers to make a sustainable living from their work.

The Court of Appeal’s decision on mandatory tariffs deprives creators of fair and affordable payment for the use of their work by stripping them of the ability to rely on their collective to ensure compliance with their rights and forcing them to be their own compliance officers. The purpose of the tariff regime is to provide collective societies with a practical, effective solution to ensure that the rights holders they represent receive fair compensation for the use of their works.

“As we have seen in the past month as schools have scrambled to move on-line, the work of creators and publishers is an essential service for education,” says John Degen, executive director of The Writers’ Union of Canada. “With the Court of Appeal’s decision, I am deeply concerned that creators’ ability to produce the Canadian content that education depends on is in jeopardy if they aren’t paid for their work when it is used.”

Access Copyright is continuing to review the ruling and to assess its options.

“When Access Copyright launched legal action against York University in 2013 to uphold the rights of creators and publishers, we knew the road ahead was long,” said Roanie Levy, president & CEO of Access Copyright. “The decision by the Federal Court of Appeal sends an untenable message for rightsholders: educational institutions that are following the education sector’s fair-dealing guidelines are copying unfairly, but the collective that has been authorized by thousands of rightsholders to administer and protect their copyright has no avenue to enforce their rights in their work. Access Copyright will continue doing what is necessary on behalf of our rightsholders to ensure they are fairly paid for the use of their work.”

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About Access Copyright

For over 30 years, Access Copyright has facilitated content use for educational and professional purposes. Access Copyright has helped people make customized use of published materials combined with an assurance that the original creators and publishers also benefit, so that they can continue creating new and innovative works. This is vitally important to a strong Canadian culture and to all who rely on quality publications.

For general media inquiries:

Amy Cormier, Head of Communications and Marketing, acormier@accesscopyright.ca