Copyright Modernization Act

The Copyright Act was amended on June 29, 2012, with the Copyright Modernization Act (S.C. 2012, c.20), also known as Bill C-11. The amendments expanded fair dealing to include education as an exception to copyright infringement. The Copyright Act aims to balance the needs of users and creators, but the new amendments led some educational institutions to emphasize user rights over creator rights. However, Federal Court cases, such as Canadian Copyright Licensing Agency v. York University, 2017 FC 669, clarified the necessity of balancing both sides fairly.

York University's Guidelines Post The Copyright Modernization Act

Following the Copyright Modernization Act amendments, some educational institutions assumed they could copy copyrighted materials without permission or payment, guided by the Ontario Ministry of Education. However, a 2017 Federal Court decision upheld the enforceability of Access Copyright tariffs, deeming York University's interpretation of fair dealing for education as unfair. York University stopped paying these tariffs in 2011 by implementing its own guidelines.

The Limits of Fair Dealing for the Purpose of Education – Copyright Modernization Act

Access Copyright sued York University for unauthorized reproduction of copyright-protected works, to which the university countered by asserting its copying practices under fair dealing. The Federal Court found York University in breach of copyright, concluding that its internal guidelines did not constitute fair dealing for education.

Educational exceptions in the Copyright Act allow certain uses of copyrighted material without permission or payment, yet a limit exists. As the court confirmed, copying by educational institutions must respect fair dealing principles, which the York University case reinforced. Notably, Section 29.4 of the Copyright Act sets specific limits on educational copying:

Educational Institutions

29.4 (1) It is not an infringement of copyright for an educational institution to reproduce a work for the purposes of education on its premises.

• (2) Permissible acts include reproduction for tests or examinations.

• (3) Exceptions do not apply if the work is commercially available in an appropriate medium.

York University's Copying Guidelines & Fair Dealing Guidelines Developed by the Council of Ministers of Education

The Ontario Ministry of Education viewed copyright in favor of user rights, resulting in a policy memorandum encouraging limited copying of works without permission. While the Copyright Act supports user rights to further public interest, as reaffirmed in CCH Canadian Ltd. v. Law Society of Upper Canada (2004), privileging users’ rights at the expense of copyright holders misinterprets fair dealing.

Current “Fair Dealing Guidelines” allow copying up to 10% of a work or one chapter, but this interpretation, if unchecked, risks undermining copyright protections.

Canadian Copyright Licensing Agency v. York University, 2017 FC 669

York University established guidelines to define fair dealing for its courses, but in 2017, the Federal Court ruled against these practices, concluding that fair dealing guidelines cannot permit copying up to 100% of a work. This decision underscored the need to properly compensate copyright creators and prevent undue favoritism towards user rights.

2024 Update: Recent Developments and Copyright Act Amendments

In recent years, Canadian copyright law continues to balance users’ rights with the protection of creators. Landmark cases and legislative updates underscore this balance:

• Access Copyright v. York University (2021 SCC 32) – In this case, the Supreme Court of Canada reaffirmed the Federal Court's decision, clarifying that the Access Copyright tariff is mandatory and York University's fair dealing practices did not meet the fairness test.

• Copyright Act Sections 29.1, 29.2, 29.4 – Emphasize that exceptions to copyright infringement, such as those for education, are limited to specific uses and contexts, reinforcing the need to maintain equitable access to copyrighted materials without diminishing creators' rights.

The law now reflects a clearer standard: fair dealing must serve both user access and creator protection. The educational fair dealing exception remains, but educational institutions must align their copying practices with a balanced and reasonable interpretation of fair dealing.

Access Copyright v. York University (2021 SCC 32)

In 2021, the Supreme Court of Canada upheld previous Federal Court rulings in Access Copyright v. York University, confirming that York University's internal fair dealing guidelines did not constitute fair dealing under the Copyright Act. This case, originating from a 2017 Federal Court ruling, examined whether York University’s “Fair Dealing Guidelines” permitted copying copyrighted materials for educational purposes without paying tariffs to Access Copyright.

York University argued that their guidelines met the fair dealing criteria for education, as permitted under the Copyright Act amendments introduced in the Copyright Modernization Act of 2012. Their guidelines allowed for the copying of up to 10% of a work, a single article, or one chapter from a book, which York contended fell within fair dealing for education. However, Access Copyright argued that this extensive copying was unfair and sought damages for unauthorized reproduction of its licensed materials.

The Supreme Court's decision clarified two critical points:

• Fairness of the Guidelines: The Court found York University’s guidelines to be arbitrary, lacking a sound basis for the 10% copying limit. They noted that under the guidelines, York could potentially copy up to 100% of an author’s work if divided across different courses, a practice the Court deemed unfair. The Court emphasized that fair dealing must be based on both quantitative and qualitative factors, not simply on arbitrary percentages.

• Mandatory Tariffs: The Court confirmed that Access Copyright’s tariffs were mandatory for educational institutions copying substantial portions of protected works. The tariffs set by the Copyright Board were held enforceable, and institutions could not unilaterally replace them with internal guidelines to avoid payment.

In their decision, the Supreme Court underscored that fair dealing in education requires a case-by-case assessment rather than rigid guidelines that fail to account for the balance between user rights and creator compensation. They reinforced that copyright law is not only about user access but also about ensuring that creators are fairly compensated and incentivized to produce original works.

This case serves as a significant precedent, affirming that educational institutions must adhere to a fair dealing standard that respects both users' needs and the rights of copyright holders. The Court’s decision impacts educational policies nationwide, setting a clear boundary on what constitutes fair dealing under the educational exception.

Relevant Sections of the Copyright Act

The decision referenced and reaffirmed key provisions within the Copyright Act, including:

• Section 29.1: Permits fair dealing for research, private study, criticism, review, and news reporting, provided the use is fair and meets qualitative and quantitative standards.

• Section 29.4: Specifically addresses fair dealing for educational institutions, allowing limited copying for classroom use while placing strict limits on copying where commercially available alternatives exist.

The recent ruling clarifies that educational institutions must strike a careful balance in applying fair dealing, recognizing that broad, permissive policies erode the rights of creators. The impact of Access Copyright v. York University thus extends to copyright policy interpretation across Canada, reinforcing the importance of equitable treatment for both creators and users.

The Supreme Court of Canada's decision in *York University v. Canadian Copyright Licensing Agency (Access Copyright)* (2021 SCC 32) is available on CanLII.

For further updates on fair dealing and copyright law in Canada, visit here.