Canada’s top court backs universities on copyright law

Canada’s Supreme Court has unanimously rejected a lawsuit against York University over its lecturers distributing limited amounts of copyrighted materials to students, in a win backed by institutions nationwide.

The top court agreed 9-0 that York could continue to share parts of books and other published works while ignoring demands for royalty payments from the nation’s major association of authors and content creators.

The decision likely will not end years of political and legal battles over copyright rules, but it gives institutions and their faculty room for manoeuvre, which they had found especially important during the pandemic.

“It’s certainly good news for students; it’s good news for teachers,” said David Robinson, executive director of the Canadian Association of University Teachers, which aided York in the court case.

The plaintiff in the case was Access Copyright, which helps authors by collecting royalty fees on their behalf. It has complained of a widespread practice of lecturers copying from books and other materials and handing them out to students, harming authors and ultimately reducing the production of new works.

As a result of the Supreme Court’s ruling, Access Copyright’s president, Roanie Levy, said: “We will all have fewer stories that speak directly to us as Canadians and chronicle our shared reality.”

York and most other Canadian universities had been paying Access Copyright an annual rights fee. In recent years, however, they had dropped out, arguing that their faculty stay within legal boundaries that allow limited amounts of free copying.

York estimated the value of the decision at about C$2 million (£1 million) a year, while Access Copyright calculated the nationwide losses from unpaid royalties at about C$30 million annually.

An initial court trial in the case rejected York’s right to withdraw from the terms of its Access Copyright agreement, but an appeals court and then the Supreme Court sided with the university.

In what Mr Robinson called a demonstration of the top court’s certainty of its position, it also ordered Access Copyright to pay York its legal costs. “They got slapped down pretty hard,” he said.

But even with the victory, Mr Robinson said he expected ongoing litigation. Individual authors remain free to pursue copyright violations, and individual universities can expect legal scrutiny of the criteria by which they assess their “fair use” of limited amounts of copyrighted materials, he said.

Members of the Canadian Parliament also have been proposing changes that would better define and update legal rights and responsibilities related to the use of copyrighted material. The Supreme Court, in its ruling, invited lawmakers to make clear whether they wanted “to make collective infringement actions more readily available”.

Covid-era shutdowns put an increased focus on the need to settle such questions as opportunities for online duplication and sharing grow, and to encourage “much more creative use of educational materials”, Mr Robinson said.

Without greater clarity, he said, lecturers during the pandemic were left wondering if they could share anything because any online exchanges could be considered duplications of materials. “There’s a lot of uncertainty,” Mr Robinson said, “and it was really heightened by the whole pandemic.”

paul.basken@timeshighereducation.com