UPDATE ON THE “MANDATORY TARIFF” ISSUE,

FAIR DEALING AND COPYRIGHT ADVOCACY IN

CANADA
February 26, 2020
UNIVERSITY OF ALBERTA

CHATHAM HOUSE RULE

HOWARD P. KNOPF, M.S., LL.M.

Counsel
MACERA & JARZYNA, LLP
OTTAWA, CANADA

(some of this material has appeared before on my blog and/or in presentations elsewhere)
(views are personal and not necessarily those of my firm or clients and are not legal advice)
 CHATHAM HOUSE RULE
“When a meeting, or part thereof, is held under
the Chatham House Rule, participants are free
to use the information received, but neither the
identity nor the affiliation of the speaker(s), nor
that of any other participant, may be revealed.”
https://www.chathamhouse.org/chatham-house
-rule
 What I have been asked to cover
Educational Fair Dealing: The State of the
Nation
This presentation will review and analyze the AC
v York decision(s), the INDU report and the
recent post-secondary tariffs from the Copyright
Board, and their implications for educational fair
dealing in Canada.
Groundhog Day?
 What I will cover
• Basic copyright concepts
• The overall state of fair dealing in Canada
• The Supreme Court cases and other case law developments
• The York University case
• Some other cases
• Recent Copyright Board tariff
• Possible amendments to Copyright Act
• The need for effective advocacy
• When I’m finished, Alana Zanbilowicz from Mt. Royal will
talk for a few minutes about the fact patterns concerning
the so-called “interim tariff” issue arising from Access
Copyright’s recent demand letters to the sector
 How Does Copyright Law Get Made in
Canada?
– Parliament
– Copyright Board
– Courts:
• Federal Court
• Federal Court of Appeal
• Courts of the Provinces and Provincial Courts of Appeal
– Supreme Court of Canada
 Main Provisions of Copyright Act
• 3 (1) For the purposes of this Act, copyright, in
relation to a work, means the sole right to produce or
reproduce the work or any substantial part thereof in
any material form whatever, to perform the work or
any substantial part thereof in public or, if the work is
unpublished, to publish the work or any substantial
part thereof, and includes the sole right…
• 29 Fair dealing for the purpose of research, private
study, education, parody or satire does not infringe
copyright.
 The SCC Fair Dealing Trilogy
• CCH Canadian Ltd. v. Law Society of Upper Can
ada
, [2004] 1 SCR 339, 2004 SCC 13
• Society of Composers, Authors and Music Publ
ishers of Canada v. Bell Canada
, [2012] 2 SCR 326, 2012 SCC 36
• Alberta (Education) v. Canadian Copyright Lice
nsing Agency (Access Copyright),
[2012] 2 SCR 345, 2012 SCC 37
 CCH Takeaways
• 49  As an integral part of the scheme of copyright law, the s. 29 fair dealing exception is
always available.  Simply put, a library can always attempt to prove that its dealings with
a copyrighted work are fair under s. 29 of the Copyright Act.  It is only if a library were
unable to make out the fair dealing exception under s. 29 that it would need to turn to
s. 30.2 of the Copyright Act to prove that it qualified for the library exemption.
• 56 It may be possible to deal fairly with a whole work… For example, for the purpose of
research or private study, it may be essential to copy an entire academic article or an
entire judicial decision…
• 63  This raises a preliminary question:  is it incumbent on the Law Society to adduce
evidence that every patron uses the material provided for in a fair dealing manner or can
the Law Society rely on its general practice to establish fair dealing?  I conclude that the
latter suffices. Section 29 of the Copyright Act states that “[f]air dealing for the purpose of
research or private study does not infringe copyright.”  The language is general.  “Dealing”
connotes not individual acts, but a practice or system.  This comports with the purpose of
the fair dealing exception, which is to ensure that users are not unduly restricted in their
ability to use and disseminate copyrighted works. Persons or institutions relying on the
s. 29 fair dealing exception need only prove that their own dealings with copyrighted
works were for the purpose of research or private study and were fair.  They may do this
either by showing that their own practices and policies were research-based and fair, or by
showing that all individual dealings with the materials were in fact research-based and
fair.
• 70 The availability of a licence is not relevant to deciding whether a dealing has been fair.
 CCH – the Six Factors
1. The purpose of the dealing,
2. The character of the dealing,
3. The amount of the dealing,
4. The nature of the work,
5. Available alternatives to the dealing and
6. The effect of the dealing on the work
“…are all factors that could help determine whether or not a dealing is
fair.  These factors may be more or less relevant to assessing the
fairness of a dealing depending on the factual context of the allegedly
infringing dealing.  In some contexts, there may be factors other than
those listed here that may help a court decide whether the dealing
was fair.”
 2012: SOCAN v. Bell Takeaways
[22]   Limiting research to creative purposes would
                         

also run counter to the ordinary meaning of “research”,

which can include many activities that do not demand
the establishment of new facts or conclusions.  It can
be piecemeal, informal, exploratory, or confirmatory.  It
can in fact be undertaken for no purpose except
personal interest.  It is true that research can be for the
purpose of reaching new conclusions, but this should
be seen as only one, not the primary component of the
definitional framework.
2012: Alberta v. Access Copyright Takeaways
[25]   Similarly, photocopies made by a teacher and provided to primary and
secondary school students are an essential element in the research and private study
undertaken by those students.  The fact that some copies were provided on request
and others were not, did not change the significance of those copies for students
engaged in research and private study.    
[26]     Nor, with respect, do I accept the statement made by the Board and endorsed
by the Federal Court of Appeal, relying on University of London Press, that the
photocopies made by teachers were made for an unfair purpose — “non-private
study” — since they were used by students as a group in class, and not “privately”. 
As discussed above, the holding was simply that the publisher could not hide behind
the students’ research or private study purposes to disguise a separate unfair
purpose — in that case, a commercial one.  The court did not hold that students in a
classroom setting could never be said to be engaged in “private study”. 
[27]     With respect, the word “private” in “private study” should not be understood
as requiring users to view copyrighted works in splendid isolation.  Studying and
learning are essentially personal endeavours, whether they are engaged in with
others or in solitude.  By focusing on the geography of classroom instruction rather
than on the concept of studying, the Board again artificially separated the teachers’
 2015: Canadian Broadcasting Corp. v.
SODRAC
• Rothstein, J. re “mandatory” issue:

Tariffs are not mandatory for users.

What part of this is unclear?

Why is there denial, doubt or avoidance?

mandatory, a. and n.

(ˈmændətərɪ)

[ad. late L. mandātōrius, f. mandātor: see prec.]

A. adj. a. Of the nature of, pertaining to, or conveying a command or mandate.

b. Of actions: Obligatory in consequence of a command. Const. upon.

c. spec. Designating a power or state in receipt of a mandate from the League of

Nations, or the system of rule by mandate. Cf. mandate n. 4 b.

B. n. a. One to whom a mandate is given; = mandatary.

¶b. Used for mandate. c. Something with the function of commanding.

d. spec. A power or state in receipt of a mandate from the League of Nations to

administer and develop a territory (in quot. 1927, the territory assigned in this
way).

Oxford English Dictionary Second Edition on CD-ROM (v. 4.0.0.3)

 The Nature of a Tariff
• Sets forth rates, terms and conditions for importers,
consumers or users of goods or services
• Looks, smells, walks & talks a lot like a tax
• Traditionally set by Governments &/or specialized regulatory
agencies for services such as air and rail travel, telephone and
other regulated monopoly or oligopolistic goods or services
• Tariffs virtually never required that a particular good or
service be used, if alternatives were available
• E.g. there were always choices of how to get from Ottawa to
Toronto
• Nobody was ever forced to take the train, much less to buy a
“Eurail Pass”
• You aren’t forced to use Highway 407 to get there from here
 De Facto v. De Jure
• If you are a radio or TV station & you don’t want to rely
on Bach, Mozart & Caruso (d. 1921), better call SOCAN
& Re:Sound – that’s “de facto”
• SOCAN & Re:Sound have huge repertoire and have
different legal regimes
• However, if you are a school board, college, or a
university - you have lots of choices and the Board’s
tariff is just one of them…
• And not the only one
• And Access Copyright has very limited repertoire
 The Concerns of the Court at the Hearing
• Justice Rothstein:
– Blanket v. transactional licenses
– Jurisdiction of the Board
– The nature of “arbitration”
– The “Hobson’s Choice” of “not using anything whatsoever or paying
this blanket fee”
– What did we want the Court to declare?
– The nature of a s. 70 proceeding where parties “voluntarily” went to
the Board for an order?
• Justice Karakatsanis:
– The retroactivity question
– See FN #2 of the decision
 On Denial
• Some are saying that the decision only applies
to s. 70.2 cases
• But it should apply a fortiori in the non-
“arbitration” context
 And the Positive Postscript…
• The retroactivity issue is now clearly on the radar screen of
the Supreme Court of Canada as a result of our submissions,
as is clear from the SCC’s 2015 CBC v. SODRAC decision. See
paragraphs 109 – 111 of the decision. In footnote 2 of the
decision, Justice Rothstein noted that:
During the hearing before this Court, counsel for the
interveners the Centre for Intellectual Property Policy and
Ariel Katz briefly raised concerns regarding the Board’s
power to issue retroactively binding decisions in general.
That issue was not squarely before this Court in this case,
and I do not purport to decide broader questions
concerning the legitimacy of or limits on the Board’s
power to issue retroactive decisions here.
 Access Copyright v. York U
• The history of this litigation – began in 2013
• The pleadings
• The litigation is based on the “interim tariff”
• Why wasn’t that interim tariff taken to judicial review
back in January of 2011 on grounds of:
a.    Lack of jurisdiction
b.    Lack of evidence
c.    Lack of procedural fairness?
• York essentially denied only that the “interim” tariff was
mandatory and pleaded that, in any case, its fair dealing
guidelines were fair
• No attack on pleadings or other summary disposition
attempt
 Access Copyright v. York U
• Access Copyright v. York U. Final three days of
argument re Phase I took place on June 22-24, 2016
in Ottawa. Decision rendered July 12, 2017.
Canadian Copyright Licensing Agency v. York
University, 2017 FC 669 (CanLII), [2018] 2 FCR 43, <
http://canlii.ca/t/h4s07>
• Main issues included:
– Is the interim tariff on which this litigation is based
“mandatory”?
– Are York U’s fair dealing guidelines sustainable?
What Did Justice Phelan of the Federal Court
Rule in AC v. York U?

“Mandatory” Issue

• [218] The Court has concluded that an approved tariff is a form of

subordinate legislation which is mandatory and binding on any person to
whom it pertains. There is no opting out.
• [219] The copying of works in Access’s repertoire, the scope of that
repertoire, and the accounting and payment by York for such copying by
its employees is deferred to Phase II of this action (the Damages Phase).
• [220] If York did not copy any works in Access’s repertoire, if it obtained
proper permission to copy those works, or if the copying was exempt by
law – the fair dealing defence and counterclaim – then the tariff would
not be applicable. Absent these conditions, the tariff is mandatory.
 Justice Phelan re Fair Dealing
[356] Weighing the factors and considering the whole of
the issue of fair dealing in the context of the facts of this
case, the Court concludes that the York Fair Dealing
Guidelines are not fair. The declaration requested will
be denied with costs to the Plaintiff.

• Note: Most problematic of many aspects for fair

dealing concerned:
– Monitoring
– Aggregate copying
 How Did This Happen
• York focussed its argument on whether the
“interim” tariff was mandatory, and it arguably
effectively conceded at trial that final approved
tariffs are mandatory, which was essential to AC’s
argument
• See Prof. Katz: Access Copyright v. York University:
An Anatomy of a Predictable But Avoidable Loss
• https://arielkatz.org/access-copyright-v-york-university-anatomy-predicta
ble-avoidable-loss/

• Katz reference to theory of “confirmation bias”

 Prof. Katz’s Conclusion
• The most important question in Access Copyright v. York University was whether
“approved tariffs” can be imposed on users. Access Copyright’s road to victory required
it to convince the Court that approved tariffs are indeed mandatory and that the
Interim Tariff was an approved tariff. York could have scored a short-term victory by
persuading the court that the Interim Tariff couldn’t possibly be an “approved tariff”
regardless of whether an approved tariff would be mandatory, but it would have
scored a long-term victory if it persuaded the Court that even a final approved tariffs
wouldn’t be mandatory. After the Supreme Court’s judgment in CBC v. SODRAC, the
conclusion that Access Copyright’s tariffs aren’t mandatory should have been low-
hanging fruit.
• But York chose to bet on the first option. Not only did it fail to convince the Court that
the Interim Tariff wasn’t an approved tariff, but by failing to counter any of Access
Copyright’s arguments on why approved tariffs are mandatory, it effectively conceded
that they are. In losing this battle, then, it looks poised to lose the war.
• Nobody can tell how Justice Phelan would have decided this issue if York had made
submissions on it. Maybe he would still find Access Copyright’s arguments more
compelling. But without even trying to vigorously counter Access Copyright’s
submissions on this point, Justice Phelan was predictably bound to agree with Access
Copyright.
The Implications of York’s Strategy
• York lost not only on whether interim tariffs are
mandatory but received pronouncement on
final approved tariffs being mandatory
• York made no attempt at summary judgment
on whether interim/final tariffs are mandatory
and thus pressed forward on York’s fair dealing
guidelines
• This may not have been necessary or inevitable
 The Fair Dealing Guidelines
• York’s guidelines – as developed by AUCC and CMEC were
arguably vulnerable to allegations of being too arbitrary and
simplistic
• U of T approach is preferable – and requires more judgment
calls by professors and staff (disclosure – I was involved)
• Also, UBC and Athabasca just to take some examples.
• The U of T fair dealing guidelines provide a useful “Step-by-
Step Approach to Determining if the Copying or other Dealing
is Permitted” and permits a degree of flexibility as to what
constitutes a “short excerpt”. The UBC document includes a
useful flow chart. No such clear and helpful guidance is found
in the AUCC documents, despite their great overall length.
Why the Fair Dealing Guidelines Issue Should
Have Never Arisen
• If the tariff wasn’t mandatory, it would have been
unnecessary to even consider the fair dealing issue
• York made this point to Judge Phelan at the trial –
but never sought to bifurcate or otherwise to avoid
dealing with it early on
• This issue clearly consumed far more resources
than the purely legal issue of whether tariffs are
mandatory
• Did York unnecessarily “bet the farm” on its fair
dealing guidelines?
 The Irony of Litigating the Fair Dealing
Guidelines
• If tariffs aren’t mandatory, Access Copyright simply has no
basis to sue an educational institution unless the institution
has voluntarily chosen to sign a license and has failed to pay
• It is neither a copyright owner nor an exclusive licensee and
thus simply cannot sue anyone for copyright infringement of
its very limited “repertoire”
• It is unlikely that any actual copyright owner would sue an
educational institution in Canada – given that damages for
isolated infringement would almost certainly be minimal
• Note the arguably applicable $5,000 cap on statutory
damages for non-commercial infringement for ALL prior
activity
 AC v. York – The Appeal
• Appeal was heard on March 5 and 6, 2019
• York University’s approach to the “mandatory” issue
was more cognizant of CBC v. SODRAC in the Federal
Court of Appeal hearing
• The “mandatory” issue was also addressed to some
extent by interveners
• CARL made a concerted attempt to intervene with a
focus on the “mandatory” issue but was, unfortunately,
denied leave to intervene
• Disclosure – I was CARL’s counsel. See:
• https://excesscopyright.blogspot.com/2019/03/access-
copyright-v-york-u-federal-court.html
 What CARL Would Have Argued – 1/2
5. CARL’s position is that the trial decision contained serious errors. In particular, CARL would, if granted leave to
intervene, argue that:
a. First, the learned trial Judge made a fundamental legal error in holding that tariffs, such as those proposed by
Access Copyright, whether interim or final, are mandatory for users. This was a threshold issue that had not been
fully and forcefully addressed by York at trial. Had this issue been correctly decided and preferably at an early
stage, this litigation, which is only the first of two planned phases, could have ended much earlier. This litigation
was based upon the Interim Tariff imposed by the Copyright Board on December 23, 2010 in a proceeding that has
still not resulted in a final approved tariff or a decision. A correct decision would also have prevented much
potential future litigation, some of which has recently been commenced.
b. Second, CARL will submit that the Court below need not have and should not have dealt with the issue of
infringement and fair dealing, because Access Copyright, which lacks standing to sue for copyright infringement,
cannot ask the Court to make findings on any alleged infringement by institutions such as York. CARL believes that
the learned trial Judge’s findings on infringement and fair dealing, which should not have been made, are seriously
erroneous, particularly with respect to the need for monitoring and supervision as well as aggregate copying, and
in any event, are merely obiter dicta.
6. The so-called “mandatory tariff” theory holds that a collective management organization (“CMO”), such as Access
Copyright, can ask the Copyright Board to approve a licensing scheme and then impose it on users. If correct, such
users then have no choice other than to deal with the collective, and must, as a matter of law, pay the entire
specified royalties if they make even a single unauthorized use of a single work from the collective CMO’s repertoire.
If correct, this would upend the legislative scheme. CARL submits that this theory lacks any basis in law. Standard
principles of statutory interpretation contradict it. The legislative history discredits it. The case law debunks it,
including most notably the 2015 Supreme Court of Canada (“SCC”) decision in which the Court held that “licences
fixed by the Board do not have mandatory binding force over a user.”1 CARL submits that this SCC decision is fully
applicable to the current case.
7. By the logic of the trial decision, an infringing use of even one single work could result in the payment of millions
of dollars for any sizable institution. Such consequences go far beyond any scenario in which an institution might be
properly sued for copyright infringement by actual copyright owners or any remedy contemplated by Parliament. In
 What CARL Would Have Argued – 2/2
8. As demonstrated in this Motion Record, CARL’s motion satisfies all
criteria of this Honourable Court for leave to intervene. CARL wishes to
emphasize that it believes that its position on the following issues in
particular will not be adequately defended in this appeal unless CARL is
granted leave to intervene:
a. The threshold issue of whether “approved” tariffs set by the Copyright Board
are mandatory, which was not fully and forcefully addressed by York at trial;
b. The issue of York’s fair dealing guidelines, which did not need to have been
and should not have been addressed by the trial Judge, notwithstanding that
both parties agreed that this should be done;
c. The incorrect rulings regarding fair dealing, particularly with respect to
monitoring and supervision and aggregate copying, and the fact that those
incorrect rulings are at most obiter dicta because these findings are, in effect,
findings about copyright infringement, and could only be regarded as precedent
in proceedings where the issue of infringement is properly before the Court.
Possible Outcomes from the Federal Court of
Appeal
• York wins 100%, i.e.
– Interim Tariff not mandatory
– Final Tariffs not mandatory
– Guidelines OK
• York loses 100%, i.e.
– Interim tariff is mandatory
– Final tariff is mandatory
– York’s guidelines no good
• Mixed outcome on issues
• Split amongst judges
• Punt back to the trial judge
• Etc., etc. …
• REMEMBER - this trial was ONLY PHASE I – still to come may be whether any of
York’s copying was outside fair dealing parameters, whatever they may be and
DAMAGES
 Uncertainty?
• Even a victory on the “interim” tariff not
being mandatory will not prevent years of
uncertainty re whether final tariffs are
mandatory
• Costs of such a limited victory will be
enormous in terms of doubt, disruption and
even chaos
 Dynamics of Appealing to Supreme Court of
Canada
• Leave to appeal is required
• ONLY the actual parties can seek leave to appeal
• CAUT, CMEC, CICAN, UC, CARL, etc. cannot initiate application for
leave to appeal – though they can seek leave to intervene at the
leave to appeal stage and in the actual appeal if leave to appeal is
granted
• If YORK loses, there is no guarantee that leave will be sought
• The well went dry at a very early stage in the Copyright Board
post-secondary tariff case
• Good news is that appeals should cost less as they go higher –
much less “paper” involved and little or no reference to evidence
• Interveners now more welcome in SCC but now normally get a
very limited role – i.e. only 5 minutes of oral argument
 Will Legislation Be Needed?
• Absent a clear victory from SCC, legislation may be needed
• There are hundreds of millions of $$$ at stake as a result of York’s
loss on the mandatory tariff issue
• Not to mention innovation, pedagogical and research chill
• Prospective and retroactive legislation needed?
• Early attempt by ISED to tilt this issue in favour of Access
Copyright failed – but is very worrisome
• In principle, Government could deal with this very simply and even
retroactively – but that requires very clear demands from the
sector and very clear thinking by bureaucrats and politicians
• Access Copyright and the content sector have shown much more
force, focus, and used much more resources to date
• Small ray of hope from the Copyright Board – but don’t count on it
• So, speaking of the Copyright Board…
 Access Copyright Board – Post-Secondary
Tariff
• Access Copyright Board – Post-Secondary Tariff – Copyright Board – Hearing
took place January 2016. This is the mega tariff hearing that AUCC and ACCC
withdrew from, leaving the matter unopposed for practical purposes.
• “They have spent almost three million dollars that we know about to mid-2012
only to abandon their members midway through this historic hearing and,
even worse still, to withdraw their objections with no apparent concession on
the part of AC. Indeed, the model licenses that they had earlier agreed upon
have been widely disavowed by their members.“
http://excesscopyright.blogspot.com/2014/04/the-access-copyright-post-seco
ndary.html
• Decision finally released on December 6, 2019 nearly four years after “hearing”
and nearly 10 years after application
• Timing was very interesting and possibly very strategic on the part of the Board
• Ironically, after such delays, decision and tariff contained seriously
embarrassing errors
• For whatever reasons, no judicial review has been sought
Main Takeaways from the Board Decision

• Controversial and arguably very wrong

reliance on the proxy of the so-called
“negotiated” AUCC model licence
• Total punt on fair dealing
• One good feature was the Board’s explicit
“silent” non-position on whether the tariff is
mandatory:
[357] The Tariffs are silent on whether compliance with a
tariff is mandatory for users who do not seek to benefit
from the licence offered thereby.
 What the Board said about “mandatory”
The mandatory nature of the tariff

[357] The Tariffs are silent on whether compliance with a tariff is mandatory for
users who do not seek to benefit from the licence offered thereby. We are
aware that related issues have been raised in recent judicial proceedings [FN
Canadian Broadcasting Corp v SODRAC 2003 Inc, 2015 SCC 57] and it is not
necessary for us to opine on the issue at this point.

[358] To the extent it might be appropriate for a tariff to include wording

whereby its benefits and obligations would only apply on an opt-in basis, we
would appreciate a more complete record before including such a provision and
invite affected persons to participate in the proceedings on the next occasion
the Board considers proposed tariffs for these users.
(highlight added)
 Economic Implications of Board’s Post-
Secondary Tariff
Here is a very rapid and very much “back of the envelope” calculation below of the
value of the tariff without interest, leaving aside deductions for the amounts paid
by some institutions prior to withdrawal. Here is a chart of the costs of the tariff,
before interest:
  2011-2014 2015-2017
Universities per FTE $24.80 $14.31
Other post-secondary $9.54 $5.50
(e.g. Colleges)

a. Based on StatsCan enrolment figures for 2015/2016 1.3 million students and an
average tariff rate of $19 for the period in question the tariff for universities is in the
neighbourhood of $151 million.
b. Likewise, for colleges based on an average tariff rate of $7.5 and enrolment of
about 731,000 students, the tariff would amount to $33 million
c. That produces a grand total of approximately $184 million, retroactively plus
interest and applicable taxes. Needless to say, if the tariff is mandatory and
sustainable retroactively, the cost going forward will be much more.
 Access Copyright demand letter:
As specified in the payment terms of the tariffs, institutions are required
to pay royalties, interest and applicable taxes and provide a report
setting out the royalty calculations by no later than three months after
the approval of the tariff (i.e. by March 9, 2020). For the current
academic year (i.e. September 2019-August 2020), the royalties,
applicable taxes and report are due no later than November 15, 2020.
If payment is not received by the due dates, interest will be charged
daily at a rate equal to 1 per cent above the Bank Rate effective on the
last day of the previous month (as published by the Bank of Canada).
(highlight added)

All institutions should get legal advice on this!

 Access Copyright v. Provinces
• To recapitulate, the Board on May 22, 2015 awarded a tariff of 11.56 ¢ per FTE
(full time equivalent) for the period 2005-2009 and 49.71 ¢ per FTE for 2010-
2014. That’s less than 1% and about 2% respectively of what AC asked for.
According to the Board, the tariff will generate a total of only about $370,000
over its ten year period – which is likely only a small fraction of the costs involved
in obtaining the tariff.
http://excesscopyright.blogspot.com/2015/05/possible-fallout-from-copyright-b
oards.html
• JR main issues:
– Did Board err in removing Deletion Provisions
– Procedural fairness re various issues
– “Substantial part”
– Burden of proof
– Assessment of fair dealing “without regard to the recognized evidential and persuasive
burdens….”
– Assessment of fair dealing “in an atomistic and isolated view of the fairness factors:, etc.
• Board vindicated and Access Copyright lost on all issues: Canadian
Copyright Licensing Agency (Access Copyright) v. Canada, 2018 FCA 58 (CanLII), <
http://canlii.ca/t/hr6rg>
 Access Copyright v. CMEC re K-12
• CMEC in 2018 launched “refund” litigation claiming
more than $25 million paid to AC from 2010 to 2012
because tariffs are not mandatory
• CMEC had stopped paying AC
• AC counterclaimed for $50 million
• CMEC made failed attempt to stay this litigation pending
the outcome of the FCA case re the “mandatory” issue
• CMEC did not seek an oral hearing and did not appeal
the denial of a stay
• Consequently, large numbers of school boards are being
forced to go through very disruptive and expensive
discovery
 COPIBEC v. Laval
• LEGAL DOCUMENTS
• Judgment dismissing the authorization (February 2016) French version
• Appeal judgment on authorization (February 2017)
• Judgment on the Notice and Amendment (July 2017) French version
• Original Process (amended) (August 2017) French version
• Notice to members (short)
• Notice to members (complete)
• Opt out Form (deadline: October 16 2017)
• Settlement notice (June 2018)
• Settlement agreement (June 2018)
• Opt out Form (deadline: September 7 2018)
• Form for asserting contentions regarding the settlement
• Decision for the approval of the settlement agreement (in French)
 Blacklock’s v AGC
• Blacklock’s v AGC T-1391-14 Decided November 10,
2016.
• [45] …It also goes without saying that whatever
business model Blacklock’s employs it is always
subject to the fair dealing rights of third parties. To
put it another way, Blacklock’s is not entitled to
special treatment because its financial interests may
be adversely affected by the fair use of its material…
• Blacklock’s “litany of litigation” now attempting to
address TPM issues
 P.S. Knight v. Canadian Standards Association

• P.S. Knight Co. Ltd. v. Canadian Standards

Association, 2018 FCA 222 (CanLII), <
http://canlii.ca/t/hwj3l>
• Leave to appeal to SCC denied P.S. Knight Co.
Ltd., et al. v. Canadian Standards Association,
2019 CanLII 45263 (SCC), <
http://canlii.ca/t/j0f26>
• Failed to attempt to intervene in Keatley case in
SCC
 Keatley Surveying v. Teranet, 2016 ONSC
1717
• Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC
43 (CanLII), <http://canlii.ca/t/j2kxw>
• Fair dealing is mentioned but not considered
• Unfortunately, the parties BOTH agreed that
copyright subsisted in the surveys in question
– a regrettable concession from the public
interest standpoint
• This left little room for the interveners to
manoeuvre on this issue
 Other Cases to Watch
• Various website blocking attempts that could impact
freedom of expression (e.g. Teksavvy GoldTV case)
https://excesscopyright.blogspot.com/2019/11/teks
avvy-fights-back-against-goldtv.html
• CBC’s ill-advised and inexplicable copyright litigation
against Conservative Party of Canada seeking to
prohibit the use of short excerpts from broadcast
footage in the course of election campaigns. 
https://excesscopyright.blogspot.com/search?q=cbc
+copyright+mcguire&max-results=20&by-date=true
 The CUSMA Term Extension Capitulation
• What is wrong with life + 70 years?
• We would still be waiting for the works of George Bernard Shaw &
George Orwell…both of whom died in 1950
• The average annual cost for NZ is NZ $55 million, which is $CDN 47.3
million, which adjusted by GDP ratio, would work out to about CDN
$454 million.
• The average present value of the cost of 20-year copyright for
recorded music and literary work term extension (which included an
estimate for film and television) was estimated by NZ is NZ $505
million, which is CDN $434 million, which adjusted by GDP ratio,
would work out to about CDN $4.176 billion.
http://excesscopyright.blogspot.com/2015/11/the-cost-of-canadian-
copyright-term.html
• + MFN and national treatment issues
• Possible damage mitigation steps include formalities and fees for
 USA – Georgia State Continues
• Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190 (N.D. Ga. 2012)filed
5/11/12
Judge Orinda D. Evans
350 pages
• Final Order dated August 10, 2012 Final order regarding declaratory and
injunctive relief
• Cambridge Univ. Press v. Patton -Eleventh Circuit OpinionFiled:10/17/2014
129 Pages
• Cambridge Univ. Pr. et al. v. Becker (N.D. Ga. March 31, 2016)Opinion on
remand from the District Court, issued March 31, 2016
• Cambridge Univ. Press v. Becker - Eleventh Circuit Court of Appeals Filed
10/19/2018 Remanding back to the District Court
• Eleventh Circuit Reverses and Remands Georgia State E-Reserves Case (Ag
ain)
ARL Policy Notes by Krista Cox October 22, 2018
 Other Major US Fair Dealing Cases in
Education Context
• Authors Guild v. Google, Inc., 804 F.3d 202 (2d
Cir. 2015) held that the copying of millions of
books into a digital searchable database was fair
use because “Google Books provides significant
public benefits” (Judge Chin)
• Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d
Cir. 2014) held that uses by defendant including
full text searchable database of copyrighted
works were “transformative” and fair use
 Can Fair Dealing Rights be Lost by Waiver or
Contracting Out?
Why do these documents make concessions on fundamental legal issues that
are far from being clearly resolved? For example, the AUCC documents state
that “Any copying and/or distribution restrictions contained in a licence that
permits access to a copyright-protected work will take precedence over the Fair
Dealing Policy.” That is arguably far from clear under Canadian law, especially
vis à vis students and professors who have not signed onto and may not be
bound by the terms of these licenses. In fact, there is a 1986
Supreme Court of Canada decision, applied several times since then and in
recent jurisprudence involving education, that affirms that when a statutory
provision has been enacted “in the public interest”, then the “long standing rule
against contracting out or waiver should apply to it”. Given the Chief Justice’s
resounding affirmation in the CCH decision of “users’ rights” and their
importance, and Parliament’s decision to include “education” as one of the
cornerstone fair dealing purposes, there would seem to be no doubt that fair
dealing “user’s rights” were enacted “in the public interest”. 
http://excesscopyright.blogspot.com/2013/09/the-aucc-finally-provides-fair-de
aling.html
 PROBLEMS WITH THE COPYRIGHT BOARD
• There are major issues still outstanding with how the
Copyright Board works, or doesn’t work and why the
Senate has called it “dated, dysfunctional and in dire
need of reform”
• Your associations need to address these issues
• The recent Government amendments buried in an
omnibus budget bill do NOT do so adequately, nor do
the Board’s promises about a new and improved
website and a Twitter account:
As part of the Copyright Board of Canada’s modernization efforts,
the team is working on revamping its website, which will present an
intuitive architecture and an improved navigation system. The
Board’s online presence will also be expanded to social media with
a public Twitter account. All this work is underway and we look
 Copyright Revision
• Unlikely to happen soon given minority
government situation
• Overall politics of copyright revision
• May arise re CUSMA and term extension
• But that won’t open the door to unrelated
issues
• May possibly arise on a crisis basis – e.g. if SCC
rules that tariffs are fully mandatory
 INDU re “Mandatory”
• Stakeholders from the educational sector vigorously opposed
mandatory tariffs. They argued that educational institutions
should be free to efficiently manage their resources at a time
when traditional licensing models are rejected in favour of
alternatives deemed to be more cost-effective. Mandatory tariffs
would force these institutions to commit funds to—and
sometimes pay twice for—licensing agreements and copyrighted
content that fail to meet the needs of faculty, researchers and
students.360 More generally, Mr. Knopf added that “Board tariffs
are mandatory only for [collective societies] but optional for
users, who remain free to choose how they can best legally clear
their copyright needs.”361
(footnotes omitted)
 More on “Mandatory” from INDU
Committee Observations
It seems evident that a tariff approved by the Board under section 70 of the Act
should only be mandatory to the parties of a licensing agreement to which the tariff
applies—no stakeholder argued otherwise. The Committee notes that Parliament
has amended provisions governing the fixing of royalty rates in individual cases as
part of the latest reform of the Board. Unlike the previous section 70.2(1) of the Act,
its new section 71(1) refers not to a “person” but to a “user” defined under its new
section 71(6). The Committee leaves to the Board and to the courts the task of
determining whether these new provisions change the state of the law regarding
the nature of royalties fixed in individual cases. The Committee will have the
opportunity to re-examine this issue should the Government report on the
implementation of the reform of the Board, as recommended above.
(highlight added)
https://www.ourcommons.ca/DocumentViewer/en/42-1/INDU/report-16/page-240
#66
 INDU re “Fair Dealing”
Recommendation 16
That the Government of Canada consider establishing facilitation between the
educational sector and the copyright collectives to build consensus towards the
future of educational fair dealing in Canada
Recommendation 17
That the House of Commons Standing Committee on Industry, Science and
Technology resume its review of the implementation of educational fair dealing in
the Canadian educational sector within three years, based on new and authoritative
information as well as new legal developments.
Recommendation 18
That the Government of Canada introduce legislation amending section 29 of the
Copyright Act to make the list of purposes allowable under the fair dealing exception
an illustrative list rather than an exhaustive one.

(highlight added)
 FAIR USE IN THE USA:
17 U.S.C. § 107
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for purposes
such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall include –
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if
such finding is made upon consideration of all the above factors.
 The Need for Balanced and Informed
Advocacy
• University and college communities have limited resources
• Have arguably used them unwisely at times
• Accomplishments due in part to great judiciary, interventions and effective
individual advocacy
• Too much appeasement and risk aversion are risky
• Rely on the SCC and the experts
• Read the judgments and the expert commentary yourselves so you can ask
good questions and give good answers
• Don’t rely on overly simplified material
• Learn advocacy lessons from such sources as US
Association of Research Libraries
• Stand firm and forcefully on fair dealing, the mandatory tariff and Copyright
Board reform
• Keep “education” and go for “such as” amendment
• Consider new approaches to Copyright Board hearings and litigation
 CONCLUSION
• Canada has achieved a fine balance to date in terms of fair dealing
law
• But that balance is fragile and vulnerable at the Copyright Board, in
the Courts, in the bureaucracy and in Parliament
• Virtually all may be lost if tariffs are finally considered to be
“mandatory”
• Be prepared and be prepared to be adversarial
• Be informed
• Don’t let your community snatch defeat from the jaws of victory –
yet again
• Work harder and work smarter and don’t hesitate to question
accepted wisdom if it seems unclear or unreasonable
• Challenge strategies that have not worked
Questions?