Image of Matt from thegreatcanadianpublishingtour.com
Yesterday, the Federal Court of Canada released its decision in the Access Copyright vs. York University case.
The background: in 2013 Access Copyright sued York for non-payment of two years of copyright fees applicable to material copied for student use. These fees were based on a tariff certified by the Copyright Board of Canada. York considered itself exempt from payment of the tariff. York’s counterclaim was that the entirety of its copying activity was covered by its own Fair Dealing Guidelines and is to be considered fair dealing under section 29 of the Copyright Act.
The result: the Federal Court found for Access Copyright in its claim, and found against York in its counterclaim. It is an emphatic judgement.
This decision is the first review by a court of the education sector’s self-generated Fair Dealing Guidelines in action – York University’s Fair Dealing Guidelines are its own, but bear very close resemblance to the Fair Dealing Guidelines adopted by Ministries of Education across Canada (with the exception of Quebec), and by a number of other Canadian universities and colleges.
The Federal Court’s decision is cogent in its explanation of how York’s Fair Dealing Guidelines are not fair in the context of the Copyright Act, which says that in order for a use of a copyright-protected work to qualify as fair dealing, the facts and circumstances of the use must show it to be fair. The facts and circumstances of York’s copying did not do so, in the Court’s view.
The narrative as it unfolds in this decision also illuminates, in my own view, a larger reality of “not fair.” York’s mass copying of material is not situational. It is, in the words of the Court, “systemic and systematic.” It is also unpaid.
Our goal as publishers is to achieve the widest possible audience for our authors’ books. Systemic and systematic use of our material at a large university is exactly what we want. We’re all for it, but just not the unpaid part – that’s something of a let-down after all the work we’ve put in to developing the material. The news that York will have to pay the reproduction fees is welcome; payment will mean royalties for our authors, and that, in the way of these things, will lead to new books, and more educational use.
This question of future use is top of mind for me now. As a board member of the ACP I have spent an awful lot of time over the past few years talking about the ins and outs of copyright – to government officials, to legislators, to educators, and, when I get home, to my long-suffering family. With all due respect to government officials, to legislators and to my long-suffering family, I wish I had spent more time talking to educators, because I think it is in those discussions that we will find a lasting answer.
We believe that what we do here at Anansi and Groundwood is valuable to students, and by extension, valuable to teachers. There is, we think, a role for us and our material in the larger enterprise of education. So it has never sat well with me that in these copyright battles we, as an entity on the creator side, have been somehow ranged up against those on the educator side. Even after writing that last sentence I want to go back to put “creator side” and “educator side” in quotation marks.
Even in the midst of these ongoing battles over copyright, there must be a way that we can recognize the shared ground that we’ve somehow overlooked. That shared ground is the work we all do towards the goal of educational attainment for Canadian students. For our part, over here on the “creator side,” learning what that work looks like in the K-12 classroom, or in the school board, or in the college or university, or in the Ministry, will involve a lot more efforts to talk with all of those over on the “educator side.” We’re sure there’s plenty to talk about.
– Matt Williams