Supreme Court Rules on Copyright in the University

On July 30th, the Supreme Court of Canada issued a decision in York University v. Canadian Copyright Licensing Agency (Access Copyright) that the university and its students were not required to pay the Access Copyright tariff intended to cover royalty payments associated with the distribution of the “readings” assigned in students’ courses at the university. While I have commented on the case more than once since it originated with Access Copyright’s 2013 suit against York, after the university stopped paying such tariffs, the Supreme Court ruling ended up hinging on an important distinction in the Copyright Act’s handling of collective societies, such as Access Copyright. The court held that the objective of such provisions is “the protection of users,” which is reflected in the granting of “the Copyright Board with price‑setting powers to protect users from the potentially unfair exertion of the new societies’ market power.” Such tariffs, then, are not compulsory for universities but simply a licensing management option for them.

The Supreme Court did not rule on York’s blanket claim that its distribution of reading qualified as a fair dealing for purposes of education, which the initial court ruling rejected, because Access Copyright does not hold the copyright on the readings, and thus cannot be a party to infringement. This means that while Access Copyright lost on a very large front, with regard to its tariffs moving to a voluntary option for universities, York’s victory could well be short-lived. The publishers will certainly consider launching an infringement suit against York’s fair dealing claim for all the readings used in its courses. In that sense, while the Supreme Court ruling is tidy and tight, it leaves much still to be decided about the particular nature of copyright in academic settings.

For example, students or universities can end up being needlessly charged – more than one study (here and here) has found – when asked to pay royalty charges for readings in courses when the assigned works are available through their library or are, as is increasingly the case, open access. The heart of the problem, from my perspective, is a failure by all parties to deal with the economics that follows from the fact that most assigned readings are from academic sources.

Catherine Baron, a Stanford undergraduate, and I found in an analysis of over 3,000 Canadian university syllabuses that over 90 percent of the assigned readings were academic in origin, largely from journals. This means that the author benefits reputationally from being assigned in a course, while work is typically purchased by libraries, especially if the reading forms a regular part of what is taught at the institution. That is, the use of such readings is not the source of “the significant and sustained economic harm to creators and publishers” that Access Copyright claims the Supreme Court Judges ignored in the organization’ recent response to the Court ruling.

In light of of our analysis, Catherine and I end up fashioning a “three-step syllabus rule.” It is designed to help universities and their libraries, as well as professional writers and their publishers (not to mention their collective rights organization, namely, Access Copyright) to systematically navigate the complex copyright landscape of the university. Rather than resorting to the crude tools of a nation-wide tariff or a blanket fair-dealing exemption, the three-step syllabus rule starts with a basic distinction between readings that are produced within the economy of the university and those that are produced outside of it by professional writers and their publishers.

The rule employs the machine learning system Open Syllabus, which can identify which syllabus readings are available to students in their institution’s library. The academic readings not found in the library are recommended to the library for purchase (thus arguably qualifying for fair dealing in the meantime). On the other hand, the assigned works of professional writers and their publishers that are not already available to the students are assigned royalty payments by Open Syllabus, based on the Copyright Board pricing. By this rule, the distinct economy of academic writers and their publishers are duly recognised and compensated (through library purchase), as is that of professional writers and their publishers, through royalty payments (with such readings amounting to less than 10 percent of those assigned in the syllabuses in our study).

Our study of university readings with its three-step syllabus rule, to be published in the Canadian Journal of Higher Education, was referenced in a Factum submitted to the Supreme Court by Ariel Katz during the trial. The study was not, alas, cited in the Court’s ruling. It may still have its day in court, however. Questions of infringement, after all, may well be raised by Canadian publishers, as a result of the Supreme Court’s recent ruling on York University v. Canadian Copyright Licensing Agency (Access Copyright).

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