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Copyright - Administration. York University v. Canadian Copyright Licensing Agency (Access Copyright)
In York University v. Canadian Copyright Licensing Agency (Access Copyright) (SCC, 2021) the Supreme Court of Canada reviewed the history of collective copyright administration at paras 47-76.
. York University v. The Canadian Copyright Licensing Agency (Access Copyright)
In York University v. The Canadian Copyright Licensing Agency (Access Copyright) (Fed CA, 2020) the Federal Court of Appeal considered a copyright dispute between the Canadian Copyright Agency and York University, with several intervenors. The main issue in the case was whether interim 'tariffs', granted on Access Copyright application to the Copyright Board, were mandatory on York. The court held that they were not:C. General Considerations
[200] Access Copyright raises a legitimate question when it asks why collective societies would incur the costs and delay inherent in having a tariff approved if it is not mandatory? The advantage of a tariff is that it is public notice of the terms on which the collective society is willing to grant a licence. There are economies involved for both the collective society and users in reducing transaction costs in licensing. A tariff could be one way of doing so though it is doubtful that these economies are available in the current regulatory environment. Whether the cost/benefit analysis justifies applying for a tariff will depend on a variety of circumstances including the extent to which the proposed tariff provokes objections and the Board’s process for dealing with those objections.
[201] The question of whether non-binding tariffs make financial sense to collective societies is an important one but, in the end, it does not assist in resolving in collective societies’ favour the consistent references in any iteration of the Act to licensing schemes and their administration.
[202] All of this emphasizes the fact that the collective society/tariff regime is a means of regulating licensing schemes which, by definition, are consensual. While there have been modifications in the statutory language used between 1936 and 2012, the continuous references to licensing schemes and the retention of the key elements of the 1936 Act leave little doubt that tariffs are not mandatory which is to say that collective societies are not entitled to enforce the terms of their approved tariff against non-licensees.
[203] It is also worthwhile pointing out that I have not lost sight of the fact that collective administration is intended to assist rights holders in enforcing their rights, particularly in the internet age. The assumption underlying Access Copyright’s argument on this issue is that effective enforcement requires mandatory tariffs. With respect, this is not self evident. The advantage of collective societies is that they allow rights holders to pool their resources to enable them to economically enforce their rights. This advantage exists even in the absence of mandatory tariffs. Furthermore, to the extent that the internet creates many opportunities for infringement, the enforcement of mandatory tariffs against many individual infringers is no different than the prosecuting infringement actions against many individual infringers. The statutory remedy is collective enforcement, not the substitution of one prohibited act for another.
D. Conclusion
[204] As a result, I conclude that a final tariff would not be enforceable against York because tariffs do not bind non-licensees. If a final tariff would not be binding, the conclusion can hardly be different for an interim tariff.
[205] Acts of infringement do not turn infringers into licensees so as to make them liable for the payment of royalties. Infringers are subject to an action for infringement and liability for damages but only at the instance of the copyright owner, its assignee or exclusive licensee. In the course of the hearing before this Court, Access Copyright candidly admitted that, given its agreement with its members, it cannot sue York for infringement in the event that some or all of the copies made by York are infringing copies. However, Access Copyright claims the right to enforce the tariff against non-licensee infringers; yet if the tariff is not mandatory then there can be no right to enforce it.
[206] As a result, the validity of York’s Guidelines as a defence to Access Copyright’s action does not arise because the tariff is not mandatory and Access Copyright cannot maintain a copyright infringement action. Therefore, I would allow York’s appeal from the judgment of the Federal Court with costs, set aside the Federal Court’s judgment, and dismiss Access Copyright’s action with costs.
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