Authors Alliance, together with Professor Ariel Katz and represented by Sana Halwani of Lenczner Slaght, participated in oral arguments before the Supreme Court of Canada in Access Copyright v. York University. Our arguments furthered the views we shared in our factum submitted last month.

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 (fair dealing is the Canadian analogue to fair use). 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.

At oral argument, we began by explaining to the court that Access Copyright does not represent the interests of all authors. Authors Alliance represents authors whose primary concern is their works having the greatest possible impact by reaching the largest possible audience. Unfortunately, the flawed approach to fair dealing taken by the courts harms these interests, and undermines our members’ efforts to support education and informed public discourse, by creating a chilling effect on the dissemination of copyrighted works. Our members’ dissemination goals are advanced by a robust approach to fair dealing.

We further explained how the fair dealing factors in this case were incorrectly dealt with because they were not anchored to specific instances of alleged infringement. The abstract nature of that inquiry was a result of the lower courts’ willingness to make a determination of infringement outside of an infringement action without the proper parties and necessary evidence. The trial court concluded that there were reproductions that entitled Access Copyright to royalties—that there was infringement—without identifying any particular reproduction that was not fair dealing.

One example of why this approach is problematic is illustrated by the way the lower courts handled the “effect of the dealing” factor. The effect of the dealing factor is intended to consider the market impact of the defendant’s actions with respect to the plaintiff’s work on the sale of or royalties from that particular work. But instead, the lower courts looked to the effect on the market generally. This general market approach untethers the analysis from the economic interests of the specific authors of the works at issue, instead bringing in irrelevant evidence of copying by other institutions and of the impact of the copying on the sales of other works.

This was a mistake and the lower courts should have addressed only whether the reproduced work adversely affects or is likely to compete with the original work, not with the market generally. We asked the court to find that it was an error of law to consider this factor in aggregate and at a market-wide level, and to reaffirm the correct approach to the effect of the dealing factor is an investigation into the effect of a specific dealing on a specific work.

Authors Alliance is grateful to Sana Halwani for skillfully representing our interests at oral argument, and to the entire Lenczner Slaght team, including Paul-Erik Veel, Jacqueline Chan, and Anna Hucman, for pro bono assistance with this intervention. We will keep readers updated on the outcome of the case.