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Canadian Copyright Licensing Agency (Access Copyright). 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 Licensing Agency [SS: a "collective society" under the Copyright Act, ] and York University, with several intervenors. In the course of the ruling the court set out these useful comments on copyright-related charges:[37] Since much of the argument was framed in terms of whether Copyright Board approved tariffs are mandatory, it is perhaps useful to begin by clarifying what it means to say that a tariff is mandatory. When Access Copyright says that the tariff in issue here is mandatory, it means that a user becomes liable for payment of the royalties stipulated in the tariff if it engages in any copying which constitutes infringement, i.e., copying which was not authorized by the copyright holder or which does not come within any of the users’ rights set out in the Act, such as fair dealing. A user’s liability to pay royalties depends upon his or her use of works in Access Copyright’s repertoire and not upon any assumption of liability for payment.
[38] There is an important distinction between liability for royalties and liability for damages for infringement. In the absence of a tariff, a user who infringes copyright becomes liable for damages for infringement in an amount equal to damages the owner of the copyright has suffered as a result of the infringement: see Act, s. 35(1). Those damages are assessed by a court. However, in the case of a mandatory tariff, the owner’s remedy is an action to enforce the tariff. In effect, the royalties set out in the tariff become a form of statutory damages. This distinction becomes blurred when Courts use the tariff as a means of calculating damages. One example of this approach among many is Society of Composers, Authors and Music Publishers Canada v. 348803 Alberta Ltd., 79 C.P.R. (3d) 449, 1997 CanLII 5389 (F.C.), where the following appears (at 452):Where it is customary to licence the use of a work, music in this instance, damages may be measured on the basis of the usual royalty or licence fee. The licence fees for music are calculated using given figures and rates from the Copyright Board Tariffs and various statistics as to the operation of the licensee.
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