For Want of a Distinction: The Copyright Act and the York University Appeal

A year ago in this blog, I addressed York University’s appeal of the federal court’s decision against its clams to “fair dealing” in its instructors’ reproduction of course materials in Canadian Copyright Licensing Agency (CCLA) v. York University. I am returning to this case, even as the appeal proceeds, because I’ve begun to think that it reveals the extent to which the Copyright Act is currently unable to serve both party’s legitimate rights and interests.

Judge Michael L. Phelan’s ruling in the original case, rendered July 12, 2017, denied York’s claim that the copying of materials by instructors for their classes qualified as “fair dealing.” The judge held the amount of copying, in the millions of pages, was excessive rather than fair, and thus did not qualify for this exception to copyright law. He ruled that the university’s guidelines for fair dealing were “arbitrary and… not soundly based in principle.”

It is the very Copyright Act’s soundness of principle that now gives me pause. The law, which seeks to encourage creators “to produce new, original, and creative works” (paragraph 109 in Judge Phelan’s ruling), does not take into account the different incentives and economies that set apart professional writers and university researchers. This lumping together of “poems, chapters from books, short stories, learned journal articles, newspaper articles, and even comics,” as Judge Phelan sets out “the works at issue,” leads to compromised positions for both parties, as I will show, with their arguments only covering a portion of these works (333).

Let me start with York’s position, or rather, with those York instructors who teach students about, and have them engage with, the professional writing of novelists, poets, non-fiction writers, journalists, and others. It seems wrong-headed for these teachers to regard their use of this professional writing as an exception to a law that seeks, as its first principle, to foster such work. Not only do Canada’s 1.7 million university students represent far too substantial a market for this work to qualify for fair dealing, these instructors have built their careers on working with such writing. Their teaching constitutes a proof that the law fosters works of cultural and intellectual value; they contribute to its quality, with such stellar examples as Northrop Frye’s student Margaret Atwood.

All of which is to say that if an instructor thinks enough of a professional writer’s work to assign it to a class, then such work should be as much a part of the university’s cost structure as any other part of this $35 billion Canadian enterprise. The universities should be keen, then, to take a strong principled stand on their interests in paying a fair price for the use of professional writing. On the other hand, instructors and students have a seeming right to use, without paying such a price, works produced by those employed by the universities and for which their publishers have already been paid “institutional” fees for access to it through the library.

Thus, I would argue that the Copyright Act needs to formally recognize this economic distinction between professional writing and research studies. Further support for this stance is found in CCLA’s position. During the trial, CCLA had the expert witnesses Michael Dobner testify that, as a result of the alleged infringement, “creators are expected to reduce the number of works they create, the time they spend creating, and the focus on post-secondary educational content” (108g). The statement, along with those on declining revenues, make it very clear that CCLA represents the distinctive interests of professional writers, as surely no one expects researchers at this point to reduce the amount of their work or their time and focus on it.

Thus, we might expect Access Copyright to be no less supportive of the Copyright Act distinguishing between professional and scholarly publishing. It could lead to increased revenue for professional writers and their publishers, as it clarifies the basis of the universities’ payments for the use of this work, while increasing compliance as a point of pride. Treating scholarly works as not exceptions to copyright but as already covered financially within the academic community will disrupt scholarly publishing, but then that could figure in current efforts to determine how best to finance universal open access to research and scholarship.

This transition to open access would be greatly aided, as I argued in an earlier blogpost, by introducing into copyright law a distinction between the livings made by writers such as Roch Carrier, thrice-cited by Judge Phelan, and professors such as Margaret MacMillan, once-cited for her “superb” book Paris 1919: Six Months that Changed the World, which might be judged professional writing, following my argument, and distinct from her work in scholarly journals (311). But then a blogpost is not the place for the fine detail work needed for uncommon instances. It is the place for highlighting in broad terms how suggestive, in this instance, the York case is, whatever the outcome of the appeal. The case speaks forcefully to a copyright reform that would help the law better serve in principle and practice the cultural and intellectual life of this country.


  1. I don’t see this distinction as workable at the level of statute: it would be like distinguishing in the law of expropriation between people who like highways on their property and people who don’t. Surely in that context the answer is that the highway-loving property-owners can simply waive their indemnity upon expropriation, just as academics who expect no remuneration for the copyright in their work can simply indicate who may copy it for free.