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ACP “frustrated and disappointed” by federal court decision on copyright tariffs

The Association of Canadian Publishers has released a statement on the Federal Court of Appeal’s long-awaited decision in the legal action between Access Copyright and York University, expressing its frustration and disappointment over the ruling.

In July 2017, York University, which had opted out of Access Copyright’s tariff program in March 2011, said it planned to appeal a court ruling that it avoided paying reproduction fees on copyrighted material handed out to students. On July 13, 2017, Justice Michael L. Phelan enforced Access Copyright’s interim tariff over York’s own fair-dealing program, which allows 10 per cent of a copyrighted material to be copied and distributed for course work without paying royalties to its creator.

While the Federal Court of Appeal agreed with the lower court’s decision that the fair-dealing guidelines adopted by York do not meet the Supreme Court’s test for fair dealing, it also ruled that the tariffs certified by the Copyright Board of Canada are not mandatory.

In a statement, ACP executive director Kate Edwards says, “Through Access Copyright, Canadian publishers have participated in the Copyright Board’s multi-year tariff process in good faith, and with an expectation of fair and reasonable compensation for the use of their content. The Court of Appeal’s decision on mandatory tariffs makes future engagement in this process futile, and leaves small- and medium-sized rightsholders in the untenable position of pursuing compliance on their own, rather than through their collective.”

ACP calls for “urgent action on the part of the federal government is needed to implement reforms that will correct market damage and provide a policy framework that supports future investment in Canadian writing and publishing.”

In its statement, Access Copyright says, “Regretfully, this important win for creators and publishers starkly contrasts with the finding that tariffs are not mandatory. This is deeply detrimental to a well-functioning copyright regime by rendering the tariff process largely futile. It also deepens the challenges experienced by content creators and publishers to make a sustainable living from their work.”

Access Copyright president and CEO Roanie Levy says, “The decision by the Federal Court of Appeal sends an untenable message for rightsholders: educational institutions that are following the education sector’s fair-dealing guidelines are copying unfairly, but the collective that has been authorized by thousands of rightsholders to administer and protect their copyright has no avenue to enforce their rights in their work. Access Copyright will continue doing what is necessary on behalf of our rightsholders to ensure they are fairly paid for the use of their work.”