Professional creators in Canada have welcomed a landmark Federal Court judgment reining in rampant free copying of creative work in the educational space. In a decision delivered July 12, Justice Michael Phelan in effect ruled in favour of all creative professionals when he found that York University had over-reached on its unilaterally defined claims of “fair dealing” for the “mass systemic and systematic copying” it performed and/or allowed on campus.
In unequivocal language, the court discarded York University’s claims to the Copyright Act’s fair dealing provision, recognizing correctly that York’s usage of the copyright protected material in question was “not fair,” and was therefore subject to the terms of a previously defined tariff. Justice Phelan also correctly applied precedent from recent Supreme Court of Canada decisions, making the court’s decision on this case extremely unlikely to be overturned.
“It is evident,” Justice Phelan wrote, “that York created [their Fair Dealing] Guidelines and operated under them primarily to obtain for free that which they had previously paid for. One may legitimately ask how such “works for free” could be fair if fairness encompasses more than one person’s unilateral benefit.” York’s guidelines, modelled largely on similar policy promoted throughout the educational sector, were found to be “arbitrary” and “not soundly based in principle.”
“This is the win we’ve been waiting for,” said The Writers’ Union of Canada (TWUC) Chair Marjorie Doyle in a release. “For years now, Canadian writers have seen huge amounts of our valuable work copied for free by the educational sector. The court has recognized the value of our labour and ordered fair payment for that work.”
“Great news for creators!,” tweeted the Playwrights Guild of Canada.
“Needless to say, I’m happy with this ruling,” award-winning Canadian author Brian Brennan wrote on his blog. “Since I started freelancing in 2000, I have been grateful for the fact that Access Copyright did the heavy lifting for me in terms of protecting my copyright. It meant I didn’t have to spend time in my local library watching to see who might be photocopying something I had written.”
“CARCC: Copyright Visual Arts would like to thank Access Copyright for its role in the recent Federal Court judgement,” said Paddy Lamb, Co-chair of CARCC . “Visual artists have been directly affected by the loss of income resulting from the 2012 amendments to the Copyright Act. We stand with our colleagues in other sectors in calling for practical and meaningful reform that protects and encourages professional creativity in Canada.”
This court challenge was necessitated by poorly designed amendments to the Copyright Act introduced in 2012. Those changes led to a dramatic increase in copying incorrectly claimed under fair dealing, which has had a significant and detrimental effect on Canadian authors’ incomes. While the Federal Court’s decision is an important legal development for Canadian authors, visual artists, playwrights, and publishers, the case underscores the need for the upcoming Copyright Act review to include meaningful reforms to the Act in order to better encourage and protect professional creativity.
As the Focus On Creators letter to Minister Joly states:
“We will continue to do what we can to succeed in the evolving digital landscape, but we need the help of Canada’s government right now… We know you understand the cultural significance of our work; we hope you also see its value and crucial place in Canada’s economy. We ask that you put creators at the heart of future policy.”
Canada’s Federal Court has now provided clear direction for the upcoming review of the Copyright Act. There should be no more confusion about copyright’s purpose.
Focus On Creators calls on the federal government to provide meaningful Parliamentary review to Canada’s Copyright Act. The review should focus on encouraging professional creation of Canadian culture and protecting the rights of Canada’s precarious cultural sector workers.
If you’re a Canadian creator and haven’t yet signed the letter, please read it, and sign if you agree.