00:00 
this is law bytes a podcast with michael 
00:03 
geist 
00:04 
[Music] 
00:09 
we have a case to hear this morning 
00:12 
so we'll call the parties now 
00:14 
in the case of 
00:16 
canadian copyright licensing agency 
00:19 
against york university and between york 
00:22 
university and 
00:24 
canadian copyright licensing agency 
00:27 
[Music] 
00:32 
the supreme court of canada recently 
00:34 
brought a lengthy legal battle between 
00:36 
access copyright and york university to 
00:38 
an end issuing a unanimous verdict 
00:41 
written by retiring justice rosalia 
00:43 
bella that resoundingly rejected the 
00:45 
copyright collective's claims that its 
00:47 
tariff is mandatory finding that it had 
00:50 
no standing to file a lawsuit for 
00:52 
copyright infringement on behalf of its 
00:54 
members in concluding that a lower court 
00:56 
fared in the analysis that favored 
00:59 
access copyright was tainted 
01:01 
the decision removes any doubt that the 
01:03 
supreme court remains strongly 
01:05 
supportive of users rights and 
01:07 
vindicates years of educational policy 
01:10 
in shifting away from access copyright 
01:12 
toward alternative means of ensuring 
01:14 
compliance with copyright law 
01:17 
kim nyer is the edward cornell law 
01:19 
librarian associate dean for library 
01:22 
services and professor of the practice 
01:24 
at cornell law school 
01:26 
she appeared before the supreme court in 
01:28 
this case representing the canadian 
01:30 
association of law libraries as an 
01:32 
intervener 
01:33 
she joins me on the podcast to talk 
01:35 
about the access copyright york case and 
01:38 
its implications for the future of 
01:40 
copyright education and collective 
01:42 
rights management 
01:43 
[Music] 
01:49 
kim thanks so much for joining me on the 
01:50 
podcast oh thank you michael it's a 
01:53 
pleasure to be here 
01:54 
yeah i know it's great to have you on 
01:55 
and it comes i think at a really notable 
01:58 
times as you know of course one of 
02:01 
canada's longest-running copyright sagas 
02:03 
came to a close late last month as the 
02:06 
supreme court of canada issued its 
02:07 
decision in the new york university 
02:09 
access copyright case 
02:11 
court certainly didn't waste any time 
02:12 
the ruling came just over two months 
02:14 
after the hearing and the unanimous 
02:16 
decision was written by justice abella 
02:18 
and this case was of course the last 
02:20 
case she heard on the court before 
02:22 
before her retirement uh just at the end 
02:24 
of june 
02:25 
now i'd like to get into the supreme 
02:26 
court decision but there may be some 
02:28 
listening that that don't have a lot of 
02:30 
familiarity with the case so why don't 
02:32 
we start a little bit with the 
02:33 
background you know what what is access 
02:35 
copyright and and what led us to the 
02:37 
point that it was locked in litigation 
02:39 
with york university 
02:41 
yeah it is an interesting background and 
02:43 
a long-running case and it basically 
02:45 
sort of encompasses my um joining the 
02:48 
post-secondary sector from from legal 
02:51 
practice prior to that um so access 
02:53 
copyright uh 
02:55 
it's a collective licensing society that 
02:57 
arose out of something that was earlier 
02:59 
called can copy 
03:01 
um and that was a solution essentially 
03:03 
to 
03:05 
to compensation for a wide range of 
03:07 
copyright holders 
03:09 
for copying by universities or people in 
03:11 
universities so can copy arose 
03:14 
in an era that was 
03:16 
where a lot of paper copying was done 
03:18 
and it was also um a different era of 
03:21 
library acquisition so the materials 
03:23 
that libraries held for universities 
03:25 
were 
03:26 
largely in print format 
03:29 
so really it was an efficient way i 
03:31 
think that both of uh 
03:33 
can copy and 
03:35 
subscribing or participating 
03:37 
institutions 
03:38 
found uh to be an efficient way of 
03:40 
clearing permissions and then what i 
03:44 
understand was a reasonable and and 
03:46 
representative cost for the participants 
03:49 
in in the collective licensing tariff 
03:50 
arrangements um using negotiation and 
03:53 
and board approval for a tariff 
03:56 
um so that that's the background of 
03:59 
access copyright and um 
04:01 
you know i don't speak on behalf of york 
04:04 
of course but i'm aware that from my my 
04:06 
own having been in a post-secondary 
04:08 
institution in canada in a library at 
04:10 
the time i'm aware that many 
04:12 
institutions did begin to have 
04:14 
difficulty with that collective 
04:15 
licensing regime the collective society 
04:19 
tariffs and 
04:21 
at a point i think about a decade or so 
04:22 
ago 
04:24 
the rates for licenses 
04:26 
increased dramatically per student and i 
04:28 
think the numbers 
04:30 
at the time of the conclusion of the 
04:32 
last tariff was something like um three 
04:34 
dollars and 38 cents a student and then 
04:36 
there was a small amount per page for 
04:39 
horseback fees 
04:40 
um and that went up to a blanket license 
04:43 
of 20 a blanket fee of 24.80 per student 
04:47 
so a big jump and that's around the time 
04:49 
that i actually joined the 
04:50 
post-secondary sector and that was a 
04:52 
a big topic of conversation 
04:54 
um and but at the same time when you 
04:56 
look at it from the university 
04:58 
perspective or you know the library 
05:00 
perspective and of course i work in a 
05:02 
library in a university and i did at the 
05:04 
time as well 
05:06 
universities were subscribing to their 
05:08 
resources through 
05:10 
other means then 
05:12 
then the 
05:14 
repertoire that was covered by the 
05:15 
access copyright regime 
05:17 
so some were using different consortia 
05:19 
and aggregator licenses for electronic 
05:22 
resources others were working directly 
05:24 
with publishers or copyright owners for 
05:27 
electronic format materials so they were 
05:30 
already paying license fees for 
05:31 
different kinds of materials 
05:34 
and then at the same time the influence 
05:36 
of the cch decision back in 2004 began 
05:39 
to become better understood 
05:42 
and educational institutions and their 
05:44 
libraries began to think about 
05:47 
fair dealing and developing guidelines 
05:49 
to ensure that 
05:50 
dealing or copyright copying was done 
05:53 
um fairly uh in compliance with fair 
05:55 
dealing rights in the copyright act 
05:58 
um 
06:00 
and uh in you know 
06:01 
developing those guidelines 
06:04 
at the time of this case um 
06:06 
they could also look at new educational 
06:09 
provisions that were added to the 
06:10 
copyright act in 2012. 
06:14 
okay so a lot of 
06:16 
a lot of change taking place some some 
06:18 
from within the law certainly with the 
06:20 
cch case but uh and but i'm really glad 
06:22 
you you referenced the the change in the 
06:25 
way that materials were being accessed 
06:27 
the emergence of digital materials in 
06:30 
particular so that there were 
06:31 
alternatives uh along the way and that 
06:33 
and many institutions were finding those 
06:35 
to be a more cost effective perhaps even 
06:38 
a better just way of of accessing 
06:40 
materials that were needed on campus 
06:42 
yeah absolutely absolutely it just 
06:44 
became a huge part of the way 
06:46 
universities were doing business to 
06:48 
acquire resources and you know as 
06:50 
somebody who worked directly in the 
06:52 
library that was 
06:53 
i i was really well aware of that 
06:56 
of that distinction and the growing 
06:58 
irrelevance actually in the repertoire 
07:01 
yeah so universities are paying for 
07:02 
materials they're just not paying it 
07:04 
through the access copyright license 
07:06 
they're also developing these fair 
07:08 
dealing guidelines but obviously access 
07:10 
copyright isn't happy 
07:12 
they want to to see payment they go to 
07:15 
the copyright board can you talk a 
07:16 
little bit about that process of the 
07:18 
copyright board which of course then 
07:19 
leads to the tariff in york ultimately 
07:21 
saying we've got these alternatives 
07:23 
we're not paying this particular tariff 
07:26 
yeah so that was um 
07:28 
you know and the institution that i was 
07:30 
with at the time wasn't 
07:32 
exited that process pretty 
07:34 
early but from what i understand that 
07:36 
that 
07:37 
that 
07:38 
process of the tariff 
07:41 
at the board was not um that was not 
07:44 
really 
07:45 
something again for all the reasons that 
07:47 
we talked about 
07:48 
the institutions the universities were 
07:50 
not finding that to be reasonable it was 
07:52 
not 
07:53 
a system that they wanted to really 
07:54 
participate in any longer given the 
07:56 
modern way of acquiring research 
07:59 
materials so um you know when it came to 
08:02 
that tariff it wasn't 
08:04 
it was something that many universities 
08:06 
just looked at and decided to walk away 
08:08 
from 
08:10 
yeah so universities walk away the board 
08:12 
does go ahead and set a tariff though 
08:14 
really without the university exactly 
08:16 
yes 
08:17 
yeah the universities though and 
08:19 
universities don't pay access copyright 
08:21 
law files a lawsuit 
08:23 
the saying you you're not paying you're 
08:26 
required to pay uh york responds as i 
08:28 
understand 
08:30 
arguing that they've make a counter 
08:32 
claim effectively saying that their 
08:33 
guidelines that they have developed help 
08:35 
address some of these issues as well is 
08:37 
that that essentially what both sides 
08:39 
are arguing yes and so you know the 
08:42 
access to access copyright's position is 
08:44 
that whether york or any other 
08:46 
university had actually exited an 
08:48 
agreement or didn't participate in a 
08:49 
tariff setting process 
08:51 
it didn't really matter the context of 
08:54 
the collective licensing provisions in 
08:56 
the act as well as the board actually 
08:59 
setting a tariff from access copyright's 
09:01 
perspective that meant that any 
09:02 
educational institution 
09:05 
that was copying any works that were in 
09:07 
its repertoire 
09:08 
were 
09:09 
those institutions were bound by that 
09:11 
tariff and then york um and and i think 
09:14 
other universities that were not 
09:15 
actually part of this uh litigation and 
09:18 
their position and their view was that 
09:21 
they couldn't be bound by it they chose 
09:22 
not to participate they did not agree to 
09:24 
participate in that tariff 
09:27 
and they they still as we said earlier 
09:29 
they subscribed to other 
09:32 
resources through other means if they 
09:34 
happen to produce reproduce works by 
09:37 
authors in access copyrights repertoire 
09:39 
they could do so 
09:40 
by seeking permissions with those 
09:42 
authors or with the owners of those 
09:44 
copyrights 
09:46 
or they could rely on fair dealing or 
09:48 
they could choose 
09:49 
on a voluntary basis to perhaps enter 
09:51 
the tariff but but had not done so so 
09:54 
that that is what under you know 
09:56 
underlay york's uh counter claim for um 
09:59 
the fair dealing position they they 
10:01 
wanted to assert this right 
10:04 
that fair dealing continued to cover the 
10:06 
kinds of activities uh whether or not a 
10:09 
tariff existed that others might have 
10:12 
been bound to or have had agreed to but 
10:15 
that's such a tariff 
10:17 
not being mandatory upon them in their 
10:19 
position 
10:20 
um 
10:21 
didn't override any sort of fair dealing 
10:23 
and that 
10:24 
universities had 
10:26 
done um 
10:27 
you know a responsible action in 
10:30 
developing fair dealing guidelines to 
10:32 
help 
10:33 
uh the act the people who were actually 
10:35 
doing the copying 
10:37 
to understand what the scope and bounds 
10:39 
of fair do 
10:40 
were 
10:41 
as interpreted 
10:43 
you know as provided in section 29 of 
10:45 
the act is and interpreted in the 
10:47 
subsequent supreme court case law 
10:50 
sure okay so that's helpful so we've got 
10:51 
on the one hand access basically saying 
10:53 
you don't have a choice here 
10:55 
once once the copyright board said a 
10:57 
tariff you must effectively be part of 
10:59 
this uh they say as long as something 
11:02 
triggers use of the repertoire you're in 
11:04 
you're ex 
11:05 
for one thing saying that can't possibly 
11:07 
be right you can't force some a license 
11:09 
on someone in this way and certainly not 
11:12 
trigger it in a way that now everybody 
11:13 
is subject to it in the way that you're 
11:15 
describing but beyond that is arguing 
11:17 
they're they're acting responsibly they 
11:19 
are licensing in a number of different 
11:20 
ways and they've established what they 
11:22 
believe are fair dealing guidelines that 
11:23 
are consistent with where uh what the 
11:25 
supreme court of canada has had to say 
11:28 
you know before we get into what the 
11:29 
courts have had to say through the as we 
11:31 
transitioned from from the lower courts 
11:33 
into the appellate courts you know one 
11:36 
of the things that that is often raised 
11:38 
especially when it comes to lobbying the 
11:40 
government is to say that that much of 
11:42 
this case and even the issue more 
11:44 
broadly around educational copying stems 
11:47 
from the reforms in 2012 the addition of 
11:50 
education as a fair dealing factor but i 
11:53 
think from a way you're describing it 
11:55 
this really predates in many ways we saw 
11:57 
in 2012 both with respect to the cch 
11:59 
case as well as the the evolution in 
12:02 
many ways 
12:03 
of how materials were being accessed 
12:05 
yeah so you know that's always been 
12:08 
my view on on the matter just 
12:11 
looking at um 
12:12 
so you know the relevant cases you know 
12:15 
cch really confirmed the user's right in 
12:19 
reproduced material it set out a 
12:21 
multi-factorial test 
12:23 
which 
12:25 
which underlies the fair dealing 
12:26 
guidelines that many institutions use 
12:29 
um 
12:30 
is and that was that was the law in 
12:33 
place when 
12:34 
the alberta education and access 
12:36 
copyright 
12:38 
case was decided which 
12:40 
supported the use the copying issue in 
12:42 
that case was by teachers for the use of 
12:44 
students that case reiterated the user 
12:46 
rights focus of cch 
12:49 
so in copying in the educational sector 
12:51 
was permissible on the basis of fair 
12:53 
dealing user rights in section 29 as 
12:56 
interpreted by cch 
12:59 
so the legislative reforms of 2012 
13:03 
obviously could not have been considered 
13:04 
in that alberta education case because 
13:06 
they hadn't yet been enacted they didn't 
13:08 
exist at the time of the activities that 
13:11 
gave rise to the litigation there 
13:13 
the provisions that you know essentially 
13:15 
might have been an issue had they 
13:17 
existed 
13:18 
are in a few provisions 
13:22 
the educational copying sections i 
13:24 
should say are highly specific 
13:26 
but there is you know 30.02 30.03 and 
13:30 
perhaps 30.3 
13:32 
are the sections that really would would 
13:34 
have some implication in a case where 
13:37 
there's educational copying in the 
13:39 
context of a tariff and a collective 
13:41 
society so i think this case really was 
13:44 
you know i think a lot of people were 
13:46 
looking to it to um 
13:48 
to find out 
13:50 
uh 
13:51 
you know 
13:52 
if we set aside for a moment the tariff 
13:54 
question or in a hypothetical situation 
13:56 
that that the tariff did apply 
13:59 
um 
14:00 
how would these new sections 
14:03 
um how would this kind of conduct 
14:06 
engage the interpretation of these new 
14:07 
educational provisions and 
14:10 
so 
14:11 
yeah you know honestly uh when i when i 
14:14 
looked at the situation and the wording 
14:17 
of the sections 
14:18 
i'm not certain how much the 2012 
14:20 
reforms really are implicated in the 
14:22 
latter um but that you know that's i 
14:24 
think what what many people were looking 
14:26 
to this case to sort of to find out is 
14:28 
how did those two things intersect sure 
14:31 
no i think that i think that's fair i 
14:32 
mean it is notable that so much of this 
14:34 
predates predates that uh particularly 
14:37 
given a lot of the noise that we've seen 
14:39 
around that particular reform and in 
14:42 
calls to scale things back within the 
14:44 
act okay that's that's really useful 
14:47 
background why don't we jump then into 
14:49 
the case the first stop of course is the 
14:51 
federal court just was just describing 
14:54 
access copyright alleging infringement 
14:56 
saying that uh fair dealing that the 
14:58 
works weren't fair dealing you've got to 
15:00 
pay the you've got to pay the rec the 
15:02 
the applicable tariff you are 
15:04 
counter-claiming 
15:05 
by pointing to both the licensing 
15:07 
they've got as well as fair dealing in 
15:09 
particular their fair dealing guidelines 
15:11 
what does the federal court decide 
15:14 
so 
15:14 
the trial judge the federal court um 
15:17 
agreed with access copyright's theory 
15:19 
and found that yorick's activities and 
15:21 
copying did actually engage the tariff 
15:25 
they 
15:26 
the court also dealt with the york's 
15:28 
counter claim and found that um its 
15:31 
activities didn't constitute fair 
15:33 
dealing 
15:34 
under section 29 um and they also found 
15:37 
that the guidelines that at least the 
15:39 
guideline that york had in place at the 
15:41 
time 
15:42 
uh also didn't comply with section 29 or 
15:45 
the fair dealing provision of the act 
15:48 
okay so slam dunk win for the for access 
15:50 
copyright i remember uh posting about it 
15:53 
and it was quite clear that the 
15:55 
that the trial judge there was convinced 
15:58 
uh by access copyright's arguments and 
16:00 
didn't have much sympathy for york's 
16:02 
positions the case of course is 
16:04 
unsurprisingly appealed it's fair to say 
16:07 
either side would have appealed this 
16:08 
case always been destined this case 
16:10 
always seemed destined to the supreme 
16:11 
court no matter what the outcomes worth 
16:13 
absolutely 
16:14 
in those in those lower court decisions 
16:17 
fair dealing of course still a big issue 
16:19 
at the at the federal court of appeal 
16:21 
but the question about the tariff and 
16:22 
it's mandatory whether or not it can be 
16:25 
mandatory or not really emerges as a 
16:27 
huge issue and uh ariel cats who was on 
16:30 
this podcast some time ago talking about 
16:32 
that court of appeal decision had done 
16:34 
some really exceptional research kind of 
16:36 
unpacking the origins of these 
16:39 
provisions and uh identifying or making 
16:42 
the case that in fact that was simply 
16:44 
never envisioned that they would be 
16:46 
mandatory um 
16:48 
can talk a bit about what the court of 
16:49 
appeal has to say and and how they 
16:51 
really picked up uh on cass's research 
16:54 
in that outcome 
16:55 
oh absolutely um so ariel katz uh 
16:58 
professor katz he did some really good 
17:01 
work in it and 
17:03 
a couple of uh pieces 
17:05 
in the intellectual property journal as 
17:06 
well as his blog i you know heard him on 
17:09 
your program as well um speaking about 
17:12 
this but 
17:13 
yeah so the the federal court of appeal 
17:16 
um they took pretty much the opposite 
17:18 
view they really 
17:19 
did rely on that that scholarship they 
17:22 
um rejected the mandatory theory they're 
17:25 
holding was essentially that the user 
17:28 
chooses not to be licensed under a 
17:30 
tariff 
17:31 
yet then makes an authority unauthorized 
17:33 
use of a work 
17:35 
um that 
17:36 
use is not not governed by the tariff 
17:39 
instead the remedy is an infringement 
17:41 
action so you know if they hadn't if 
17:44 
when when 
17:47 
a user not covered by a tariff 
17:49 
does the kinds of things that we've 
17:51 
already talked about 
17:53 
looks to fair dealing ensures that its 
17:55 
copying was covered by fair dealing or 
17:57 
is otherwise covered by some other 
17:59 
license or direct permissions 
18:01 
then they're on side but if if they're 
18:04 
not for any reason or if a copyright 
18:06 
holder believes it or not the remedy is 
18:08 
an infringement action 
18:10 
access copyright the way it's structured 
18:13 
and set up they don't actually represent 
18:16 
individual authors they um they're a 
18:18 
license for reproduction of a repertoire 
18:21 
of authors works but they cannot 
18:24 
assert um an infringement action on 
18:27 
behalf of an author they don't actually 
18:29 
own any of that copyright so um 
18:32 
and they're not you know they're not an 
18:34 
assignee they're not they don't hold an 
18:36 
exclusive license to that work 
18:38 
so 
18:39 
that was um you know the basis on which 
18:42 
the federal court said 
18:43 
the access copyright doesn't 
18:46 
have the ability to prevent york from 
18:49 
making any copying or to seek 
18:50 
reimbursement um 
18:53 
it 
18:54 
you know so it it essentially 
18:56 
um 
18:58 
disposed of that issue by saying by you 
19:02 
know subscribing to the voluntary versus 
19:04 
mandatory tariff theories 
19:06 
okay so 
19:07 
on that on that side uh they pick up as 
19:10 
we were saying on the cast research it's 
19:12 
not mandatory but they do on fair 
19:14 
dealing yeah uh largely up uphold what 
19:16 
the federal court what the trial judge 
19:18 
had to say exactly they they did um and 
19:21 
so they would delved into that fair deal 
19:23 
in question um 
19:25 
and did 
19:28 
again did establish or did find that 
19:30 
york couldn't um 
19:33 
couldn't 
19:34 
couldn't make the fair dealing case and 
19:36 
also couldn't make the fair dealing case 
19:38 
with respect to its guidelines so they 
19:40 
did not grant that declaration that was 
19:42 
sought 
19:43 
okay so we got so both sides now of 
19:45 
course have reason uh to be unhappy uh 
19:48 
york on the fair dealing issue access 
19:50 
copyright on the tariff and whether it's 
19:52 
mandatory issue and so unsurprisingly 
19:54 
now we head to the supreme court of 
19:56 
canada there was a hearing in may so as 
19:59 
we're saying it's all this has moved 
20:01 
really quickly once uh from the stage of 
20:03 
hearing until the outcome uh where rough 
20:05 
where these are the issues that are 
20:07 
largely litigated and you add to the mix 
20:10 
a very large number of interveners 
20:12 
really large numbers on both sides 
20:15 
i think 
20:16 
it was it was quite amazing to see one 
20:18 
after another uh come through you know 
20:21 
with a whole series of course arguing 
20:23 
positions that were sympathetic texas 
20:25 
copyright and then a whole series that 
20:26 
were sympathetic to york and the 
20:28 
educational perspective you appeared as 
20:30 
an intervener on behalf of the canadian 
20:32 
association of law libraries what was 
20:34 
your focus 
20:35 
yeah so i i should um also clarify that 
20:39 
when it came to the supreme court it was 
20:41 
in the format of two appeals right it 
20:43 
was 
20:44 
um 
20:45 
york appealed from the decision below 
20:47 
and access copyright appealed from the 
20:49 
decision below and the canadian 
20:51 
association of law libraries decided not 
20:53 
to participate in the mandatory tariff 
20:55 
question 
20:57 
our association 
20:59 
includes law libraries that are part of 
21:01 
the educational sector for certain 
21:03 
that's a large percentage of our 
21:06 
members but we also include 
21:08 
law libraries that are not in the 
21:10 
educational sector and so for whom the 
21:13 
tariff is not really relevant 
21:15 
the other thing frankly is we we know 
21:17 
that we knew that that was being quite 
21:19 
fully addressed by other interveners as 
21:21 
well as of course by york so our focus 
21:24 
was really you know we 
21:27 
our members are our law libraries and 
21:29 
people who work in law libraries 
21:31 
and 
21:32 
we were concerned about the kinds of 
21:34 
materials that law libraries hold 
21:37 
we were also concerned about access to 
21:39 
justice and 
21:42 
whether um a narrow construction a fair 
21:46 
dealing something that retreated from 
21:49 
cch and did 
21:52 
did not um 
21:54 
you know was a retreat from the user 
21:55 
rights focus whether that would be 
21:57 
harmful for access to justice whether 
21:59 
that would be harmful for the ultimate 
22:01 
users of the materials 
22:02 
in law libraries 
22:05 
and we also wanted to get a sense you 
22:08 
know to make a case for guidelines not 
22:10 
specifically york's guidelines we didn't 
22:13 
really want to speak to the merits of 
22:15 
that we wanted to we wanted to make a 
22:18 
case that guidelines are really helpful 
22:19 
and you know as someone who works in and 
22:22 
directs a law library 
22:24 
i know that it's not lawyers it's not 
22:26 
university council who are standing 
22:28 
there you know making an assessment of 
22:29 
whether a particular deal is fair that's 
22:32 
not possible it's it's library staff 
22:35 
uh generally speaking who are doing the 
22:38 
copying and we need to supply guidelines 
22:40 
it's really important for us to be able 
22:42 
to ensure that copying is done fairly 
22:45 
and 
22:46 
we want to to reiterate the importance 
22:49 
of guidelines in general as a way to 
22:51 
achieve that and that it's consistent 
22:54 
with the holding in cch 
22:56 
um and then you know fourth overall we 
22:59 
just wanted to ensure that the um court 
23:01 
was aware about um you know the prospect 
23:05 
of unintended consequences should fair 
23:07 
dealing be 
23:09 
retreated from or narrowed in the kinds 
23:12 
of materials or the kinds of use that 
23:14 
that could happen 
23:16 
so again we didn't we didn't participate 
23:18 
in 
23:20 
in the access copyright appeal and the 
23:21 
mandatory license question 
23:23 
we were there to um to speak about fair 
23:26 
dealing 
23:27 
okay uh all of that in five minutes so 
23:30 
not a lot not a lot of time to make your 
23:32 
case but i know that you did it well 
23:34 
lots of editing lots of editing i 
23:36 
there's there's got to be there's just 
23:37 
not a lot this is not a lot of time you 
23:39 
got to really focus on on the core 
23:41 
issues that matter the most uh i want to 
23:43 
come back to what the court had to say 
23:45 
on guidelines because it does make an 
23:46 
important reference to guidelines but um 
23:48 
why don't we quickly go through what the 
23:51 
court had to say is mentioned off the 
23:52 
top they come back with the decision 
23:54 
very very quickly typically the average 
23:56 
is usually six months this comes back in 
23:58 
just over two 
23:59 
um how did how did the court address the 
24:01 
really the couple of key issues first on 
24:03 
i know you didn't participate 
24:04 
specifically or intervene specifically 
24:06 
on the mandatory tariff issue but what 
24:08 
did the court have to say on that 
24:10 
well you know again professor katz 
24:13 
really deserves a lot of credit there 
24:14 
they the court relied heavily on his 
24:16 
scholarship and in fact um the day that 
24:20 
i read the case i just emailed ariel uh 
24:23 
right away and i said 
24:24 
it must be incredibly gratifying to see 
24:26 
your words 
24:27 
uh used in in 
24:29 
the resulting reasons it really 
24:32 
focused on that question that you know 
24:34 
essentially if the party that chose not 
24:37 
to be bound by the tariff by a 
24:39 
collective license 
24:40 
um 
24:42 
didn't want to participate in that 
24:44 
process nothing in the way that the the 
24:48 
collective society 
24:49 
provisions of the licensing act um even 
24:52 
the board certification nothing could 
24:54 
require that or have that terror for 
24:56 
license forced upon a party and um you 
24:59 
know it's um 
25:03 
it it almost makes some sense when you 
25:06 
when you think about it in stepping back 
25:08 
of the 
25:08 
you know unintended consequences of that 
25:11 
ruling had that not happened and um 
25:15 
it uh 
25:17 
it really the court went into great 
25:19 
depth on the legislative history the 
25:20 
legislative purpose 
25:22 
of those collective licensing collective 
25:24 
society provisions 
25:26 
and and really did just affirm that um 
25:30 
they are not mandatory uh on on someone 
25:33 
who just happens to copy something in 
25:36 
their repertoire and they pointed to 
25:38 
what could be triggered you know the the 
25:41 
enormous fees that could be triggered by 
25:43 
one piece of copying that might have 
25:44 
been offside 
25:46 
how did the court grapple with the fair 
25:47 
deal yes so that was the interesting 
25:50 
question from our perspective obviously 
25:52 
we participated in that but but also 
25:54 
because there were some persuasive 
25:55 
arguments that 
25:57 
their dealing 
25:58 
didn't really exist as a question to be 
26:01 
litigated in this case at this point if 
26:04 
if the tariff were voluntary 
26:08 
it 
26:10 
it was it was interesting to me that the 
26:12 
court 
26:14 
agreed with that perspective but um 
26:17 
found it necessary to correct errors of 
26:20 
law in the in the if by both courts 
26:23 
below and um 
26:25 
the error one of the great errors of law 
26:28 
that actually was gratifying to us um 
26:30 
the canadian association of law 
26:31 
libraries gratifying to to read the 
26:34 
court write about was 
26:36 
um the 
26:37 
the 
26:38 
lack of emphasis or the insufficient 
26:40 
emphasis on the end user perspective 
26:43 
of fair dealings again is interpreted by 
26:45 
cch 
26:46 
and it was uh you know 
26:48 
they really affirmed 
26:50 
the court own prior jury students on 
26:52 
this question 
26:54 
that 
26:55 
fair dealing is a user's right and in 
26:59 
the context of institutional copying you 
27:01 
can't ignore the institutions 
27:03 
activities but at the same time you 
27:05 
cannot you cannot um 
27:08 
ignore the the ultimate purpose of fair 
27:10 
dealing and uh and you know so it 
27:13 
corrected some errors of the court below 
27:16 
in terms of the the application of that 
27:19 
test and i think that was really sort of 
27:21 
the ultimate um 
27:23 
the ultimate 
27:24 
outcome of their reasons is reiterating 
27:27 
that the user rights perspective 
27:29 
yeah definitely is a really strong 
27:31 
affirmation 
27:32 
of what we've seen in the prior case law 
27:34 
it's 
27:35 
some in some ways it's it's it's 
27:37 
frustrating a little bit to see the same 
27:39 
issues get re-litigated and questioned 
27:41 
again and again in the court despite the 
27:43 
fact that we've seen a significant 
27:45 
turnover in the court there was no 
27:47 
member of the court from cch still on 
27:49 
this decision but the consistency i 
27:51 
think over now that's right more than 15 
27:54 
years is quite remarkable and it's just 
27:55 
it's quite clear that the this is where 
27:57 
the court is and has and that's that has 
28:00 
run through many different judges and 
28:02 
and they haven't wavered really at all 
28:05 
the you you focused as you mentioned on 
28:07 
the guidelines issue did the court 
28:09 
highlight how did the court highlight 
28:11 
the issue of guidelines in the decision 
28:13 
so on the question of guidelines so 
28:15 
again the court didn't go into depth on 
28:18 
the on fair dealing they didn't feel 
28:20 
that they had the proper um factual 
28:23 
matrix anymore or the proper arguments 
28:26 
the proper parties weren't before it 
28:29 
again access copyright not having a 
28:30 
right to litigate on behalf of a 
28:32 
copyright owner 
28:34 
um 
28:35 
you know however it did get into this 
28:37 
important question of 
28:39 
addressing whether there were serious 
28:41 
errors that could not really stand on 
28:43 
the record and i'm 
28:45 
again gratified that they did that i'm 
28:47 
also gratified that they spoke about 
28:49 
guidelines even though they didn't speak 
28:51 
in great uh at great length about fair 
28:53 
dealing at all but did recognize that 
28:56 
you know guidelines is one factor that 
28:58 
had been set out in cch 
29:00 
remains a relevant factor and so that 
29:02 
was that was important to the canadian 
29:04 
association of law libraries to see as 
29:06 
well as i'm sure to many in the 
29:08 
educational sector yeah precisely i 
29:10 
think it's value really extends to many 
29:12 
because of course just given given the 
29:15 
importance of of the of that user right 
29:17 
a fair dealing guidelines become an 
29:19 
important way that that gets implemented 
29:21 
for so many 
29:22 
um what were your thoughts broadly on 
29:25 
decision were you surprised uh either by 
29:27 
the speed or the outcome or any any 
29:29 
other aspects of the decision definitely 
29:31 
surprised by the speed i was pleased by 
29:34 
it but i was definitely surprised 
29:36 
um 
29:37 
it you know i thought the the reasons 
29:40 
were authored by justice isabella and 
29:43 
um you know 
29:45 
i'm glad that she invested the time into 
29:47 
that before uh before she steps down 
29:50 
from the court um but i'm not i'm not 
29:53 
surprised by 
29:55 
i'm not surprised by the decision on the 
29:56 
voluntary versus mandatory tariff i i 
29:59 
had read um ariel's scholarship and i 
30:01 
had you know 
30:03 
thought about that question and 
30:06 
justice abella did go on at length again 
30:09 
about the history of licensing and um 
30:11 
the emergence of that as a legislative 
30:14 
avenue for permissions 
30:16 
she went into great depth on that um and 
30:20 
i think but i think honestly anyone who 
30:22 
steps back from the situation and looks 
30:24 
at it from the perspective of what it 
30:26 
could mean for licensing generally to 
30:29 
have somebody 
30:30 
have a license 
30:34 
the terms of a license which is really 
30:36 
what the tariff is 
30:38 
forced upon them when they're not 
30:40 
necessarily even aware of it 
30:42 
and you know as someone who has worked 
30:44 
in a library that was for a time covered 
30:46 
by 
30:47 
access copyright's license to even delve 
30:50 
into the repertoire and discover which 
30:52 
works are are part of the repertoire is 
30:55 
a is a great challenge and that's for 
30:56 
someone who actually knows about it 
30:58 
so you know stepping back it seems like 
31:01 
the most reasonable 
31:02 
the most reasonable outcome 
31:04 
and i tend to find that the court's 
31:06 
decisions tend toward reasonable 
31:08 
outcomes in practice 
31:11 
yeah i think that's uh certainly 
31:13 
unsurprisingly i i agree with you i mean 
31:15 
it just never made sense to me to say 
31:17 
that someone would be forced into a 
31:19 
license in the way that access copyright 
31:22 
envisioned or argued that the law 
31:24 
functioned and it was good to see the 
31:25 
court pick up on that you know there 
31:27 
will be of course 
31:28 
a lot of discussion coming out of this 
31:30 
on what this means more broadly for for 
31:33 
education educational copying we've now 
31:36 
had multiple decisions that have all 
31:38 
gone in the same direction do you have a 
31:40 
sense of or an expectation or even a 
31:43 
guess as to where things may be headed 
31:45 
now is is this kind of the end or uh or 
31:48 
is access copyright likely to continue 
31:50 
to find 
31:52 
either lobby 
31:53 
avenues with respect to lobbying or even 
31:56 
further litigation possible 
31:58 
well i have no crystal ball um but i 
32:02 
you know there 
32:04 
i don't think the story is quite done 
32:06 
and one of the reasons i say that is the 
32:08 
um 
32:08 
you know the intersection of the 
32:10 
educational copying 
32:12 
provisions of the of the 2012 amendments 
32:15 
um with fair dealing 
32:18 
was not actually part of this case the 
32:20 
fair deal in question 
32:22 
was not evaluated by the court by the by 
32:25 
the supreme court um they corrected 
32:27 
errors but they didn't get into 
32:29 
uh analysis of the case because proper 
32:31 
parties weren't before it there were 
32:33 
there was no owner of copyright before 
32:35 
it to um 
32:37 
to for there to you know give rise to an 
32:40 
infringement action 
32:41 
that could that fair dealing could serve 
32:43 
as a as a defense for 
32:45 
so will there be 
32:46 
another 
32:48 
case i would say probably it 
32:50 
you know and 
32:52 
perhaps perhaps a class action perhaps 
32:54 
you know 
32:56 
a similar kind of context to 
32:58 
cch where you know there may be 
33:01 
some publishers or some copyright owners 
33:03 
put forward 
33:04 
as a representative 
33:07 
author or copyright holder 
33:09 
to test these questions that's that's 
33:12 
one possibility 
33:13 
um 
33:14 
it is really hard to say and as far as 
33:16 
access copyright's future that may be an 
33:19 
option um you know they may be able to 
33:22 
um reform themselves again for the 
33:26 
modern 
33:27 
uh for the modern 
33:29 
educational institution 
33:31 
again they emerged from canned copy 
33:33 
which was 
33:34 
really very paper focused and you know 
33:37 
they 
33:38 
morphed into something that dealt i 
33:40 
believe with course packs 
33:42 
and uh that kind of bulk copying 
33:44 
so perhaps perhaps they will morph into 
33:47 
something else that may may represent 
33:49 
authors directly i'm really not certain 
33:51 
what their what their goals are but it's 
33:53 
i think it's pretty hard for them to be 
33:55 
a viable collective society 
33:58 
except perhaps for smaller institutions 
34:00 
that may not have the resources 
34:02 
to invest in um 
34:04 
in ensuring copying is done 
34:07 
on side of copyright law 
34:09 
or who may not be subscribing to many 
34:13 
licenses to acquire resources through 
34:15 
other means 
34:16 
yeah so of limited value for especially 
34:19 
the many of the larger institutions that 
34:20 
are also potentially the source of the 
34:22 
largest amount of revenue who 
34:24 
it's 
34:25 
it feels like have in many ways moved on 
34:27 
it's just the the marketplace has has 
34:30 
emerged to allow for more efficient 
34:32 
effective licensing that results in 
34:35 
payment but uh just not payment through 
34:37 
the access copyright intermediary and it 
34:39 
is true again as someone who uh manages 
34:42 
a law library and sees our budget and 
34:44 
manages our budget we pay enormous 
34:47 
amounts for educational materials that 
34:49 
we provide to students and a whole 
34:52 
separate arena has developed under this 
34:54 
we use 
34:56 
learning management systems to ensure 
34:58 
that copying reproduction 
35:01 
um and links to licensed material 
35:04 
are provided only for the you know the 
35:07 
strict purposes of learning and teaching 
35:09 
in the classroom 
35:10 
uh whether it's in a virtual classroom 
35:12 
as you know many schools did this past 
35:14 
year 
35:15 
or whether it's in an in an in-person 
35:18 
classroom 
35:20 
mechanisms have been adopted to ensure 
35:23 
that um 
35:24 
that copyright holders are getting 
35:26 
compensated and they're getting 
35:27 
compensated quite a lot so the the other 
35:30 
thing that's changed of course is that 
35:32 
in in this time um 
35:34 
fair dealing has come a long way 
35:37 
those responsible for making decisions 
35:39 
about fair dealing are much more 
35:40 
informed 
35:41 
than they used to be even york's own 
35:43 
guidelines have changed 
35:44 
and a lot of work a lot of time and 
35:47 
resources and legal knowledge 
35:50 
is going into developing those 
35:51 
guidelines 
35:53 
even professor katz held a symposium 
35:56 
back in 
35:57 
2012 i think it was 
36:00 
where um 
36:01 
[Music] 
36:02 
guidelines 
36:04 
were it was a workshop in some ways it 
36:06 
was an opportunity for those who work in 
36:08 
this area 
36:10 
to share ideas and think about ideas 
36:12 
about what should be fair what could be 
36:14 
fair 
36:15 
and and that one had the opportunity of 
36:17 
the 2012 amendments to to look at and 
36:20 
adapt guidelines to 
36:23 
so things have come a long way uh both 
36:25 
in the courts and within the education 
36:27 
community and uh i guess it's these 
36:30 
issues are are going to continue but uh 
36:32 
it's certainly been moving i think in 
36:34 
one direction one of greater choice and 
36:36 
an emphasis over a fair dealing 
36:38 
something that's been recognized both by 
36:39 
politicians of course and now also by 
36:41 
the supreme court yet again yet again 
36:44 
and guidelines yet again 
36:46 
fair enough true enough uh kim thanks so 
36:48 
much for joining me on the podcast oh 
36:50 
you're most welcome it was my pleasure 
36:52 
michael 
36:54 
[Music] 
36:58 
that's the law bites podcast for this 
37:00 
week if you have comments suggestions or 
37:02 
other feedback write to lawbytes at 
37:04 
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37:06 
follow the podcast on twitter at law 
37:09 
bytes pod or michael geist m geist 
37:12 
you can download the latest episodes 
37:14 
from my website at michaelgeist.ca 
37:17 
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37:20 
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37:22 
the lobbites podcast is produced by 
37:24 
gerardo lebron labor 
37:26 
music by the leboy brothers gerardo and 
37:29 
jose lebron labor 
37:31 
credit information for the clips 
37:32 
featured in this podcast can be found in 
37:34 
the show notes for this episode at 
37:36 
michaelgeist.ca 
37:38 
i'm michael geist thanks for listening 
37:40 
and see you next time 
37:43 
[Music]