29 August, 2017

It's Just not Fair! - York University's Copying of Works for Teaching not Fair Dealing

Since the decision in CCH (discussed more on this blog here), fair dealing has been very different in Canada, showing its flexibility and adaptability in modern copyright issues. Due to the much broader, US fair use comparable doctrine introduced in the CCH case, some could even argue that fair dealing has gone too far and become too strong of a shield. Even so, many cases have challenged, and will challenge, the notion of fair use and its extent, and a recent Federal Court decision looked at fair dealing yet again.

The case of Canadian Copyright Licensing Agency v York University dealt with with the distribution of study materials to students by York University in the form of Coursepacks. These information packs contained a course outline or syllabus, course notes, and course materials such as excerpts from books, journal articles, and other miscellaneous materials. The packs were produced by York University Printing Services (or at times external printers, e.g. Keele Copy Center).  The University did have a licensing arrangement with CCLA, which expired in 2010, but was renewed on an interim basis. The University then terminated the arrangement, remaining outside of CCLA's copyright licensing scheme. Remaining outside of the scheme would force the University to monitor its compliance with copyright laws (including fees and reporting). CCLA wanted to enforce the previously agreed interim tariff, and took York University to court, with the University counterclaiming fair dealing for any reproductions.To protect their interests, York University published its own copyright guidelines in the absence of a different agreement.

The first point of contention was whether the Interim Tariff would be enforceable against York University regardless of their termination of the tariff.

According to Justice Phelan, handing down the Court's judgment, the historical development of collection societies and their fees for the use of copyright protected works shows legislative intent to provide the societies "…with effective enforcement mechanisms against users who are not subject to an agreement and who reproduce, without authority from owners or without the benefit of an exception (e.g. fair dealing), copyright protected works covered by the collectives". These tariffs are legally binding subordinate legislation, which has no opt out capability. Only if "…York did not copy any works in Access’s repertoire, if it obtained proper permission to copy those works, or if the copying was exempt by law… then the tariff would not be applicable". Ultimately the Court concluded that the Interim Tariff would be mandatory and that CCLA would be entitled to the recovery of the royalties and other associated costs.

The Court then moved onto the consideration of whether the use by York University would fall under fair dealing.

The basis for fair dealing in Canada is CCH Canadian Ltd v Law Society of Upper Canada (discussed more here), which sets out, much akin to fair use in the US, the criteria for fair dealing to be established. They are that the use is an authorized purpose under section 29 of the Copyright Act (such as education), and that the use is 'fair'. The fairness of any use has no set definition, but is assessed based on 6 non-exhaustive factors: a) purpose of the dealing, b) the character of the dealing, c) the amount of the dealing (amount of copying), d) alternatives to the dealing, e) the nature of the work, and f) the effect of the dealing on the work.

As the threshold for establishing that a use falls under an authorized purpose is low, the Court quickly concluded that the use by York University was indeed for education. The Court then took on the assessment of fairness, looking at each of the factors above individually in relation to the facts at hand.

Teaching methods vary greatly, irrespective of coursepacks
Firstly, what the purpose of the dealing was. The Court considered that the initial assessment of the authorized purpose of the use and the first fairness factor had a great deal of overlap. To mitigate this, they aimed to find out the 'goal of the dealing', rather than its purpose, which they determined to be the allowance of access for students to various teaching materials. However, due to the termination of the Interim Tariff, and the introduction of the copyright guidelines, the Court saw that the goal of the dealing was two-fold: "…Education was a principal goal, specifically education for end user. But the goal of the dealing was also, from York’s perspective, to keep enrolment up by keeping student costs down and to use whatever savings there may be in other parts of the university’s operation". The goal therefore was not simply an altruistic furthering of education, but to also to cut costs. The factor was not deemed to be strongly in favor of fairness.

Secondly, the Court looked at the character of the dealing. This includes the examination of how the work was dealt with, the number of copies made, and the extent of its dissemination. Data provided by York University was very unreliable, according to Justice Phelan, due to largely deficiencies in user access data. Justice Phelan concluded that the issues with the data and poor witness evidence from York University weighed towards unfairness under this factor.

Thirdly, the amount of dealing was looked at. This is not a simple consideration of the quantity of material used, but also a qualitative one on the importance of the part that was copied. What the Court focussed on were the copyright guidelines issued by York University, which specified a 10% limit to copying from a single work, without discussing the qualitative element. Due to this lack of qualitative control, works were copied indiscriminately and multiple times for different courses. The Court therefore failed the amount of dealing assessment, as there was nothing fair about the amount of dealing used.

Fourthly, the Court took on considerations for alternatives to the dealing. Should there be no alternatives the factor can weigh in favor of fairness, due to the necessity of the copying. The volume of material from varied sources used in teaching, as evidenced by York University, did show a degree of necessity for the copying. While there were alternatives, there were no free alternatives to use, which subsequently left the Court to conclude that the factor favors York University.

Fifthly, what the nature of the work is. As most of the materials copied were academic or creative works, they required a great deal of creativity, complex analytical analysis, skill, perspective, and judgment by authors. Due to the significant skill, effort, and investment involved, the nature of the works weighs against York University, especially considering their treatment by both the copiers and the guidelines issued by the University.

Finally, the Court considered the effect of the dealing itself, for example, on the creators and publishers of the work. This could amount to a possible element of competition with the original work in the marketplace.  The creation and distribution of the coursepacks at issue have shown a decrease in sales and licencing revenues for CCLA, especially after the issuing of the copyright guidelines. The Court concluded that "…the Guidelines have caused and will cause material negative impacts on the market for which Access would otherwise have been compensated for York’s copying".

The Court ruled against York University, disallowing their counterclaim for fair dealing as the University failed on 5 out of 6 factors as discussed above. York University have stated that they will appeal the decision.

The case will potentially have profound effects on Universities in Canada, particularly on those who might not be under a licence from the CCLA. As the case will be appealed the future of the decision remains uncertain, potentially even reaching the Supreme Court down the line, yet professors, librarians and administrators at Universities need to be careful in the meantime. This writer does not purport himself to be a Canadian copyright expert, and the decision has received quite a bit of criticism, so he will refrain from making sweeping comments on the validity of the decision.

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