Aug 18 2021
The more than ten-year-old effort by Access Copyright (“AC”) to impose a “mandatory tariff” through the Copyright Board on Canadian educational institutions is over in a quick, decisive, and devastating unanimous judgment from Justice Rosalie Abella of the Supreme Court of Canada (“SCC”) on July 30, 2021. 85 years of legislative policy and SCC jurisprudence are re-affirmed, vindicated, and continued. No rational and competent Cabinet of any political stripe should even think about trying to overturn this result.
The Court held that:
- AC’s tariff as approved by the Copyright Board is not mandatory for users
- It is unnecessary and inappropriate to issue a declaration about fair dealing in these circumstances
- Nonetheless, there were serious errors in the Courts below concerning their pronouncements about fair dealing, e.g. re “aggregate” copying were noted.
The Court also provided additional guidance on how guidelines can “actualize” fair dealing rights and provided useful guidance for the educational sector to move on – without the need to seek gratuitous and inappropriate declarations from Courts.
These three main aspects of the Court’s judgment reflect the intervention of our client, the Canadian Association of Research Libraries (“CARL”). We can proudly say that our arguments, as presented by our Counsel Howard Knopf, were clearly very influential and, apparently, even determinative. The other clearly influential intervention that helped to carry the day was from Prof. Ariel Katz and the Author’s Alliance, who showed that Access Copyright by no means represents the interests of all authors and certainly not the interests of most of the authors whose works are actually used in Canadian universities. Other interveners also provided useful contributions, e.g. Universities Canada and the Canadian Association of University Teachers.
Justice Abella heard the AC v. York & York v. AC case on May 31, 2021 as her last case before her retirement from the SCC on July 1, 2021. Her unanimous and unusually prompt yet extremely detailed and substantial judgment was rendered on July 30, 2021 – just ten weeks after the SCC heard this case, which was technically two appeals and which included 17 interveners. This remarkable judgment summarizes the consistent policy and jurisprudence of Canadian copyright law on collective administration and fair dealing since 1936. This landmark judgement will crown her luminous and lasting jurisprudential legacy built upon her previous important judgments in copyright and so many other areas. This may well prove to be the most important copyright judgment to date in Canada.
From a purely practical bottom-line standpoint, if the decision had gone the other way, Canadian universities could have been on the hook for hundreds of millions of dollars or more for retroactive and prospective payments that would be been a windfall to AC and a disaster for higher education and innovation. Not to mention much more litigation and potentially one or more further trips to the SCC. We now have litigation closure on this for the foreseeable future – but the lobbying to undo this result has already begun.
Prof. Katz was also the author of the two “Spectre” papers that were so influential in the Court’s reasoning and are cited several times. He and Prof. David Lametti, as he then was, before he became a Member of Parliament and then Minister of Justice, were Howard Knopf’s, colleagues, co-counsel and clients in an intervention in the immediate forerunner to the current SCC decision, namely, the case of Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII),  3 SCR 615, <https://canlii.ca/t/gm8b0> (“CBC v. SORRAC”) decided in the SCC just six years ago by now retired Justice Marshall Rothstein. See paras. 101 to 113 which held, based upon our intervention, that:
 I find that licences fixed by the Board do not have mandatory binding force over a user; the Board has the statutory authority to fix the terms of licences pursuant to s. 70.2, but a user retains the ability to decide whether to become a licensee and operate pursuant to that licence, or to decline.
CARL's press release is here.
For further detail and Howard Knopf’s personal reflections on this decision, see:
Victory and Vindication from Justice Abella and the Supreme Court of Canada for Canadian Educators
Here’s the Supreme Court's Cases in Brief summary:
Here's the full decision:
The oral arguments are here. https://scc-csc.gc.ca/case-dossier/info/webcastview-webdiffusionvue-eng.aspx?cas=39222&id=2021/2021-05-21--39222&date=2021-05-21
CARL's argument is at 3:37:56.
Here's the link to all the factums:
This article is for information purposes only and does not constitute legal or professional advice.
Author: Howard Knopf
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Tags: Copyright, Howard P. Knopf, tariffs