Authors Alliance, together with Professor Ariel Katz, has submitted a factum to support our intervention in Access Copyright v. York University, currently on appeal before the Supreme Court of Canada.

The case involves a claim by Access Copyright, a Canadian copyright collective, which seeks to have York University comply with an interim tariff approved by the Copyright Board of Canada for works in its collection. In response, York University brought a counterclaim seeking a declaration that its guidelines for copying materials for education purposes constituted “fair dealing” under the Copyright Act of Canada. The case raises the question of whether copyright collectives can force users to license content from them, even if the users prefer to comply with their copyright obligations in other ways.

As our factum explains, in the absence of specific allegations of copyright infringement from copyright owners, the lower courts should not have dealt with the issues of infringement and fair dealing. Because the lower courts did so without the proper plaintiffs, the result was a misguided approach to fair dealing that undermines users’ rights and the interests of many authors. Our factum also explains that even when their works are published under “all rights reserved” models, many of our members believe that their interests are best served with a robust application of fair use and fair dealing that does not unduly interfere with their dissemination goals, particularly in educational contexts.

On the issue of whether the approved tariffs are mandatory vis-à-vis users, our factum supports the Federal Court of Appeal’s finding that the approved tariffs bind copyright collectives but cannot be imposed on users as mandatory tariffs. We highlight some of the incoherent outcomes that would follow from the mandatory tariff theory, including the further marginalization of authors who are not a part of the collective’s repertoire.

To read our factum in full, click here.

The Supreme Court of Canada will hear oral arguments in the case on May 21, and Authors Alliance has been granted permission to present up to five minutes of oral arguments at the hearing. Authors Alliance is grateful to Lenczner Slaght attorneys Sana Halwani, Paul-Erik Veel, and Jacqueline Chan, as well as law clerk Anna Hucman, for pro bono assistance with this intervention.