Education Fair Dealing Update: All Eyes on York as Copibec and Université Laval Reach Tentative Settlement

June 26, 2018
By Catherine Lovrics, Max Rothschild, and Tamara Céline Winegust

Fair dealing in educational contexts has been a hot issue in Canada. Canadian copyright lawyers and scholars have been watching two cases involving Canadian universities that have been making their way through the courts – one involves York University and the other Université Laval. Both cases revolve largely around whether fair dealing guidelines permit the universities to refuse to pay licensing fees to the relevant copyright collectives. The case involving Université Laval was expected to proceed in Québec courts in parallel with litigation before the Federal courts between Access Copyright and York University – with potentially divergent results. On June 19, a tentative settlement was reached between Copibec (the collective) and Université Laval – if the tentative settlement with Laval is approved by the Court, all eyes then will be on the appeal in the York University case.

By way of background, Copibec is a licensing collective based in Québec that represents authors and publishers of books, magazines, and newspapers. Laval had terminated its licensing relationship with Copibec in 2014, instead relying on the “education” fair dealing exception and a series of internal fair dealing guidelines for professors. Laval had relied upon its fair dealing guidelines to provide bright line thresholds for the amount of copying that professors could engage in without being required to seek licensing from copyright owners.

Laval’s guidelines were said to be substantively similar to those set by other educational institutions around Canada after the Copyright Act was amended in 2012 to include education as an allowable fair dealing purpose. In fact, in 2017 Laval had sought a stay of its proceedings with Copibec until the Federal Court of Appeal had resolved the dispute between Access Copyright (another licensing collective) and York University. Laval had argued that the Federal Court’s decision would address the same issues given the close similarity between Laval and York’s respective fair dealing guidelines. However, the Québec Superior Court denied Laval’s request, stating that (without proof from Laval) it could not be taken as a given that Laval’s and York’s respective fair dealing guidelines were the same, and so it was not certain  that the decision in York would be determinative of the proceedings against Laval.

The settlement between Université Laval and Copibec — which must still be approved by the court — is a significant development in the ongoing legal disputes between educational institutions and copyright owners for written works. As discussed in Bereskin & Parr’s 2017 Copyright Year in Review, the dispute was expected to provide a decision addressing the scope of fair dealing for the purpose of education. Now that the dispute between Laval and Copibec has tentatively settled, it remains to be seen whether Access Copyright and York might similarly come to terms out of court, or if the Federal Court of Appeal will allow York’s appeal.

In 2017 the Federal Court found that York’s fair dealing guidelines were not fair, in large part based on the amount of the dealing fairness factor. The Court found the fixed thresholds in York’s guidelines to be arbitrary and not soundly based in principle, essentially because the University could not explain why such thresholds were set or why they were “presumptively fair”. York has appealed the decision to the Federal Court of Appeal, and the appeal will be closely watched by educational institutions, copyright owners, and legal commenters.

A press release announcing the settlement between Université Laval and Copibec indicated that neither party admits any wrongdoing or liability. The parties indicate that the settlement avoids further legal costs, and respects both the rights of copyright owners as well as the needs of the academic community. Access Copyright has released a statement, with Access CEO & President Roanie Levy saying,

“The settlement reached between Copibec and Laval demonstrates that we can effectively come together and mend our differences, while avoiding the burden of the cost, time and resources of the court system. We hope that this resolution will encourage the education sector to come to the table to collaborate with Canadian creators and publishers to mutually resolve the outstanding issues that exist between us.”

The successful negotiation of the settlement would appear to signal a significant step towards conciliation between copyright owners and users, and is a major development for fair dealing in Canada when it comes to educational institutions. It remains to be seen whether Copibec and Laval’s settlement will be approved by a court, and whether it might foreshadow a similar resolution with Access and York. The Canadian copyright bar will be keeping an eye on the court’s approval of this settlement, while the dispute between Access and York is pending before the Federal Court of Appeal and remains a major case-to-watch in 2018 for development of Canada’s fair dealing law.

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