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Russell Wangersky: Court decision a big win for authors

Published on July 17, 2017

I’m far from a disinterested observer in this. (I’ve made this disclaimer before, but for clarity, I’ll do it again — away from the newspaper business, I’m an author of seven books, with work in anthologies beyond my own books.)

And I’m feeling a little bit vindicated.

Russell Wangersky
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For years now, universities and colleges in Canada have been operating under guidelines on “fair dealing” that were drawn up by the Association of Universities and Community Colleges (AUCC) when it comes to copyright. Instead of paying authors for their work, the guidelines came up with a structure that allowed universities to copy work and sell or give it to their students for free.

They set guidelines themselves, the judge determined, without even bothering to consult with the owners of the copyright of the works they decided to copy.

York University was one of those colleges. Basically, York adopted the AUCC’s guidelines, and, under them, copied and distributed millions of pages of copyrighted work. They did it without paying the owners of the copyrights, and argued their actions were legitimate because everything was being done for the purposes of education.

(In this province, Memorial University’s guidelines mirror York’s guidelines; they are also modeled on the AUCC’s “Fair Dealing for Universities” guidelines, and were approved by MUN’s Board of Regents in 2012.)

But after a lengthy federal court case against York by Access Copyright, a copyright collective representing authors and publishers, a judge has ruled that the universities so-called fair dealing guidelines were a charade.

Those are my words, not his. His were: “York’s own Fair Dealing Guidelines are not fair in either their terms or their application.”

Judge Michael Phelan went on, “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 judge said that the guideline on “fair dealing” had more to do with self-dealing than anything else — that York, and presumably the other Canadian universities and colleges using the same model, were abusing copyright rules for their own financial gain. They set guidelines themselves, the judge determined, without even bothering to consult with the owners of the copyright of the works they decided to copy.

“It is evident that York created the guidelines and operated under them primarily to obtain for free that which they had previously paid for. One may legitimately ask how such ‘works for free’ could be fair if fairness encompasses more than one person’s unilateral benefit,” Phelan wrote. “The goal of the dealing was multifaceted. Education was a principal goal, specifically education for end user. But the goal of the dealing was also, from York’s perspective, to keep enrolment up by keeping student costs down and to use whatever savings there may be in other parts of the university’s operation.”

What’s it mean?

Well, the quick conclusion, according to the judge, is that “The Interim Tariff is mandatory and enforceable against York,” so theoretically, the university may end up having to pay for five years’ or so of copyright fees. The amount of that financial penalty will be set in the next phase of the court action — to give an idea of the scale, the interim tariff that the judge is referring to, if I remember properly, is $26 per full-time student, per semester, for five or so years. Other universities will have to decide whether to pay, too, or face their own court actions.

After that?

Well, probably appeals — because universities and colleges have rolled some pretty big dice here. At this point, they’ve lost, and the problem for the institutions of higher learning is that it is time to pay the pipers — of which I am one.

 

Russell Wangersky’s column appears in 30 SaltWire newspapers and websites in Atlantic Canada. He can be reached at rwanger@thetelegram.com — Twitter: @wangersky.