York University v Access Copyright:

reflections and what lies ahead

Ariel Katz
Associate Professor, Faculty of Law, University of Toronto

ABC Copyright Conference

May 25, 2022

Agenda

• What we’ve accomplished so far

• The challenges that lie ahead

• How to respond to them

What we’ve accomplished so far?
Ten years ago
Things looked a bit grim
• Federal Court of Appeal 2011 decision in Alberta (Education) v Access Copyright:
• Copying for instruction couldn’t possibly be considered fair dealing; beyond the scope of s 29.

• The Supreme Court heard an appeal on that decision, but it was difficult to predict what the Court would decide.

• Meanwhile, Parliament was debating the Copyright Modernization Act, and there was no guarantee that it would indeed add “education” to s 29.
• Most universities were still addicted to AC and couldn’t possibly see how they could operate without it.
• AC was aggressively pursuing its proposed tariff at the Copyright Board.
• UofT and Western’s betrayal:
• In Jan 2012, UofT and Western signed a 2-year license agreement with AC

• Soon thereafter the Universities’ coalition at the Copyright Board collapsed.

• AUCC and AC agreed on a “model licence” (followed by ACCC)

• AUCC and ACCC withdrew from the Copyright Board proceeding

• It was expected that most universities and colleges would sign those “model licences”.
Ten years ago
New optimism
Ten years ago
New optimism
• May 15, 2012: UBC announced that it would not sign a license agreement with Access Copyright
• “We believe we are taking the bolder, more principled and sustainable option, which best serves the fundamental and long-term interests of
our academic community” (David H. Farrar, Provost and Vice President Academic (Vancouver) and Doug Owram, Deputy Vice Chancellor
and Principal (Okanagan)). 

• Other universities begin following UBC.

Ten years ago
New optimism
• May 15, 2012: UBC announced that it would not sign a license agreement with Access Copyright
• “We believe we are taking the bolder, more principled and sustainable option, which best serves the fundamental and long-term interests of
our academic community” (David H. Farrar, Provost and Vice President Academic (Vancouver) and Doug Owram, Deputy Vice Chancellor
and Principal (Okanagan)). 

• Other universities begin following UBC.

• Fair Dealing’s Halls of F/Sh/ame
Ten years ago
New optimism
• May 15, 2012: UBC announced that it would not sign a license agreement with Access Copyright
• “We believe we are taking the bolder, more principled and sustainable option, which best serves the fundamental and long-term interests of
our academic community” (David H. Farrar, Provost and Vice President Academic (Vancouver) and Doug Owram, Deputy Vice Chancellor
and Principal (Okanagan)). 

• Other universities begin following UBC.

• Fair Dealing’s Halls of F/Sh/ame
• June 29, 2012: Copyright Modernization Act—Parliament adds “education” to s 29
Ten years ago
New optimism
• May 15, 2012: UBC announced that it would not sign a license agreement with Access Copyright
• “We believe we are taking the bolder, more principled and sustainable option, which best serves the fundamental and long-term interests of
our academic community” (David H. Farrar, Provost and Vice President Academic (Vancouver) and Doug Owram, Deputy Vice Chancellor
and Principal (Okanagan)). 

• Other universities begin following UBC.

• Fair Dealing’s Halls of F/Sh/ame
• June 29, 2012: Copyright Modernization Act—Parliament adds “education” to s 29
• July 12, 2012: Supreme Court of Canada’s Copyright Pentalogy.
Ten years ago
New optimism
• May 15, 2012: UBC announced that it would not sign a license agreement with Access Copyright
• “We believe we are taking the bolder, more principled and sustainable option, which best serves the fundamental and long-term interests of
our academic community” (David H. Farrar, Provost and Vice President Academic (Vancouver) and Doug Owram, Deputy Vice Chancellor
and Principal (Okanagan)). 

• Other universities begin following UBC.

• Fair Dealing’s Halls of F/Sh/ame
• June 29, 2012: Copyright Modernization Act—Parliament adds “education” to s 29
• July 12, 2012: Supreme Court of Canada’s Copyright Pentalogy.
• The Court reaffirms an expanded and vibrant view of fair dealing:
• SOCAN v Bell;
• Alberta (Education) v Access Copyright
• Opting-out continues: more and more institutions take control over the management of their copyright; appoint copyright/scholarly
communication librarians
And then, in 2013, AC sued York
University.
Enormous change
Two competing narratives

Our story The other story

• A triumphant, happy story.

• A story of rogue and selfish
educational institutions who flout
• We fought for a robust vision of fair the law

dealing and prevailed.

• Emboldened by short-sighted
• We fought against AC, a cartel of amendments to the Act and

publishers who attempted to

impose itself on us and won our • A terrible Supreme Court who’s
right to choose how we comply oblivious to the devastation that its
with copyright law. rulings inflicts on authors and
publishers.
Countering that other story is the
main challenge that lies ahead
The Copyright Libel Against Canada
The Copyright Libel Against Canada
The Copyright Libel Against Canada
“Tales of the widespread demise of industries are just that”
Australian Productivity Commission Report (2016), at 178
The Copyright Libel Against Canada
The Copyright Libel Against Canada
The Copyright Libel
A lie
• A lie: The publishing industry was brought to its knees
The Copyright Libel
Was the publishing industry brought to its knees?
The Copyright Libel
Was the publishing industry brought to its knees?
The Copyright Libel
Was the publishing industry brought to its knees?
The Copyright Libel
Was the publishing industry brought to its knees?

Quick calculation:
Annual industry revenue: ~ $1.5 billion
Lost AC revenue over a decade: $190 million
Lost AC revenue per year: $19 million
Percentage of AC revenue loss: 1.27%
How academic publishers are doing?
Oxford University Press—2021 Annual Report (academic):
How academic publishers are doing?
RELX (Elsevier’s parent company)—2021 Annual Report

That’s 1 billion euros profit and

38% profit margin
The Copyright Libel
Why does the lie persist?
• Because it combines 2 related truths with a lie and an unrelated (semi)
truth to tell a compelling, yet false, story

• Truth #1
• Since 2012, most educational institutions stopped obtaining licences from
(and pay licence fees to) Access Copyright, and Access Copyright’s
revenue has declined dramatically.

• Truth #2
• As a result, the amounts that Access Copyright has distributed to its
members and affiliates has also declined significantly.
The Copyright Libel
Why does the lie persist?
• The Lie:
• Not paying AC = not paying anyone and just copying anything uncontrollably

• Combined with a half-truth

• Most freelance Canadian authors, namely, novelists, poets, and some non-fiction writers, earn very
little from their writing (and some small Canadian publishers may be struggling as well).

• True, but

1. This has always been the case

2. If worse, has very little to do with copyright (crunch of the middle class? highly concentrated
publishing industry?)

3. Even less to do with educational institutions (more about soon)

The Copyright Libel
Why does the lie persist?
• Producing a compelling yet false narrative:
• Authors and publishers are struggling BECAUSE institutions stopped
paying Access Copyright

• Implication: if we want Canadian authors to strive, educational institutions

must pay Access Copyright
The Copyright Libel
Why does the lie persist?
• Producing a compelling yet false narrative:
• Authors and publishers are struggling BECAUSE institutions stopped
paying Access Copyright

S E !
• Implication: if we want Canadian authors F A L
to strive, educational institutions
must pay Access Copyright
The Big Lie
Understanding Access Copyright’s business model

• Which works are in Access Copyright’s repertoire;

• Which authors are members of Access Copyright and which aren’t;

• What type of content generally is used in higher education;

• How Access Copyright distributes the money it collects.

Anatomy of Access Copyright
Which works can be in its repertoire?

• Copyright Act, s 2 (definitions)

collective society means a society, association or corporation that carries on the
business of collective administration of copyright … for the benefit of those who, by
assignment, grant of licence, appointment of it as their agent or otherwise, authorize it
to act on their behalf in relation to that collective administration, and
(a) operates a licensing scheme, applicable in relation to a repertoire of works, … of
more than one author … pursuant to which [it] sets out classes of uses that it agrees to
authorize under this Act, and the royalties and terms and conditions on which it agrees
to authorize those classes of uses

…
Anatomy of Access Copyright
Which works AC claims to be in its repertoire?
• AC claims (e.g., Roanie Levy et al testimony to the Copyright Board):
At this time, the works that are in Access Copyright's repertoire ("Repertoire")
include:

Any published work in print form or that has a print equivalent (a "Print
Work”), that has been issued to the public with the consent or acquiescence of a
rightsholder that is either resident or domiciled in or a citizen of or incorporated in
Canada and/or in a jurisdiction with which Access Copyright has a bilateral
agreement in place, that has not been excluded by the rightsholder; …
Anatomy of Access Copyright
Who are AC’s members?
• According to its 2017 Annual Report
• Publishers
• 671 publisher affiliates
• Authors:
• 12,674 creator affiliates, which includes not only writers, but also visual artists.
• (Plus the repertoires of foreign collectives)
• Fun facts:
• According to Stats Canada, there are 47,001 full-time teaching staff at Canadian universities

• CAUT represents 72,000 academic authors (teachers, researchers, librarians, and other academic staff) (not including
medical faculty researchers employed in hospitals)

• Only a small fraction of those are among those affiliated with AC

Anatomy of Access Copyright
What type of content generally is used in higher education?
• Mostly academic:
• Written by academics (not necessarily Canadian), published in academic
journals, essay collections, monographs

• Not the works written by AC’s creators affiliates:

• Novelists

• Poets

• Non-fiction freelance writers

Anatomy of Access Copyright
What type of content generally is used in higher education?
“At eleven of Canada's largest twenty
universities, English and French, you can
complete a major in literature without any of
it being Canadian. (At all twenty you can earn a
B.A. without ever reading a Canadian poem or
novel.)” (emphasis added)

Nick Mount, "Arrival: The Story of CanLit” (House of Anansi

Press, 2017), p 292

• And most student don’t complete a major in

literature
A closer look at Canadian academic course materials
Willinksy & Baron (2021) Which we have
licences to use and for
which we pay good
money
A closer look at Canadian academic course materials
Willinksy & Baron (2021)

66% of courses
assign textbooks
(which students
purchase)

Willinsky, J., & Baron, C. (2021). What Should Students Pay for University Course Readings?: An Empirical, Economic, and Legal
Analysis. Canadian Journal of Higher Education, 51(4), 40–53. https://doi.org/10.47678/cjhe.v51i4.189159
 So,
If Canadian universities don’t really copy the works of Canadian
novelists and poets, why did those authors receive money through
Access Copyright in the past, and
Why did those payments stopped when universities stopped paying
Access Copyright?

Understanding the essence of AC’s model

Essentially, a cartel of publishers and some authors scheme
• Double dipping for academic publishers:
• Get content from academic authors for free
• Sell it back in books and subscriptions to universities and get paid

• Get paid again through Access Copyright

• Windfalls:
• Textbook publishers

• Trade publishers, and

• Canadian non-academic authors

• Who receive money to which they can’t have any legal or moral claim
How does it work?
What AC collects for and how it distributes the money

• What AC collects for?

• AC purports to have (essentially) all works in its repertoire

• Collects money for the use of all works

• No lower fee or refund if institutions use non-AC works

How it works
What AC collects for and how it distributes the money

• How it distributes the money?

• Title-specific distribution (based on reporting or estimates of which works
are used)

• E.g., if it is reported that licensee copied an article that I wrote and was
published by an affiliated publisher, the publisher will receive the money
(whether they own the copyright or not)

• AC says title-specific amounts to approx 2/3 of distributions

• (What happens if licensee reports copying of a work of non-affiliates?)

How it works
What AC collects for and how it distributes the money
• How it distributes the money?
• Non title-specific distribution (not based on actual use). AC explains:
• These royalties are then distributed 50/50 between affiliated creators and publishers. … [“Repertoire
payments” for publishers; “Payback” for affiliated writers and visual artists].

• Additionally, an allocation of 15% of all revenue available for distribution (split 50-50 between our creators
and publisher affiliates) “in recognition of the value our affiliates provide to our repertoire.”

• The formula we use to distribute Payback annually includes two steps.




Step One - 40% of the Payback pool is distributed equally amongst all creators.



Step Two - 60% of the Payback pool is distributed to writers and visual artists depending on what type
of publication (i.e. books, magazines, scholarly journals and newspapers) their work was featured in and
how much they published. The more you publish, the greater your Payback payment.
How it works
The big euphemisms
• What “non title-specific distribution”, “repertoire payments”, “payback” really
mean is:

• Join Access Copyright and receive money not because YOUR works
were copied but because the works written by OTHER authors were
copied.

• This is the money that the textbook publishers, trade publishers, novelist,
poets, and non-fiction freelance writers used to receive

• And are fighting tooth and nail to continue receiving.

What’s next?
April 8, Budget 2022 announcement
Government really wants to do something but very vague on what

• “The government is committed to ensuring that the Copyright Act protects all
creators and copyright holders.

• As such, the government will also work to ensure a sustainable educational

publishing industry,

• including fair remuneration for creators and copyright holders,

• as well as a modern and innovative marketplace that can efficiently serve

copyright users.”
Could Parliament overturn York U v AC
and make tariffs mandatory?
• Parliament could try but it’s not that simple:
• Katz, Spectre II (2015):
• “… the ‘‘mandatory tariff” theory gives rise to numerous practical challenges, conceptual puzzles,
procedural nightmares and constitutional headaches, each of which should weigh the scales against it.”

• For example, Abella J in York U v AC:

• [40]        Access Copyright argued in the alternative that pursuant to s. 68.2(1) Board approved royalties
operate as a remedy for infringement against a user who has not accepted a licence. … …
Section 68.2(1) could not have been meant to silently create a second statutory damages scheme, where
“amounts are predetermined by the Board, and then imposed without regard to the actual circumstances
of the case and without any proportionality to either the user’s behaviour or copyright owners’ actual
damage” (“Spectre II”, at p. 58).

• “Sword of Damocles” that Howard discussed

Could Parliament make tariffs mandatory?
The constitutional problem: federalism; Constitution Act, 1867
• Federal power—Section 91(23): • Provincial power—Section 92(13):
Subjects of exclusive Provincial Legislation
Legislative Authority of Parliament of Canada
In each Province the Legislature may exclusively make
… it is hereby declared that … the exclusive Laws in relation to Matters coming within the Classes
Legislative Authority of the Parliament of Canada of Subjects next hereinafter enumerated; that is to say,
extends to all Matters coming within the Classes of …

Subjects next hereinafter enumerated; that is to say,

13. Property and Civil Rights in the Province.

22. Patents of Invention and Discovery.

• Section 93:
Legislation respecting Education
23. Copyrights.
In and for each Province the Legislature may
exclusively make Laws in relation to Education …
Copyright legislation vs Education legislation
Where’s the line?

• No caselaw on this specific question, but general principles can guide us

• Three propositions:

• Parliament can enact a general copyright law that applies to everyone,

including, incidentally, to educational institutions

• Parliament can exempt educational institutions from some burdens that the
general copyright provision would otherwise impose on them

• Parliament CANNOT enact provisions that impose specific burdens on

educational institutions
Additional constitutional considerations
Whom can Parliament regulate?

• Parliament has the power to grant copyrights and hence has the power to regulate copyright owners to
prevent abuse of the granted power

• And Parliament can regulate the power of copyright collectives to protect users

• Mandatory tariffs turn this upside down ==> each tariff, if mandatory, regulates the specific type of
users

• Maybe Parliament can do that in the case of other federally-regulated users (e.g., broadcasters,
airlines)

• Likely cannot do that in the case of provincially-regulated users (e.g., educational institutions, libraries)

• Dictating from whom educational institutions and other provincially-regulated entities obtain licences and
on what terms may also encroach on provincial jurisdiction over “property and civil rights” (s 92(13))
Constitutional considerations
INDU Report (2019 Statutory review of the Copyright Act) hints at the problem

• “The Committee cannot endorse the proposal to limit educational fair dealing
to cases where access to a work is not “commercially available,” as defined
under the Act.

• While licensing should be encouraged, this proposal risks reducing flexibility

in the educational market by favouring blanket over transactional licensing.

• While the Government can facilitate negotiations between the relevant parties,
it is not the role of Parliament to compel provincial institutions into a
specific licensing relationship. …”
What to do?
Use our comparative advantage

• We have limited lobbying power and we’re not great at telling fiction, but:

• We’re experts in:

• Critical analysis

• Deconstructing arguments and debunking fallacies

• Making arguments based on evidence and sound theory

• Defeat lies with truth; falsehoods with reason

Thank you!