The Supreme Court of Canada, in a rare copyright decision, unanimously held that copyright collectives cannot charge fees to those who decline their contracts.  The ruling can be expected to affect how a number of copyrights are administered in Canada.

The dispute arose from a lawsuit by Access Canada (Access) against York University (York) (2021 SCC 32).

Access is a “collective society” that represents many publishers.  For years, York held a license that let professors and students copy works in the Access collection, such as textbooks.  York declined to renew the license in 2011, saying it would rely on the “fair dealing” exceptions in the Copyright Act to make copies going forward. 

In the lawsuit, Access claimed York should pay copying fees set by the Copyright Board – called “tariffs” – even though York did not agree to a license.  York said that the tariff was not enforceable against it because it had not agreed to be bound and counterclaimed for a declaration that its copying was fair.

On the tariff question, the Supreme Court agreed with York. As the Copyright Act is silent on who collectives may collect royalties from, the Court held only those who agree to a license are bound to pay the associated fees set by the Copyright Board. 

The Court however declined to decide whether York’s copying was fair.  Fair dealing arises when infringement is alleged, and Access did not sue for infringement, but for refusal to pay the tariff. The Court noted that in this case, the various copyright owners would have standing to sue for infringement.   The question of fair dealing therefore did not require an answer.  The Court nonetheless offered some guidance for the future, emphasizing that fair dealing is a “user’s right” that must consider both an institution’s purpose when copying and the end user’s right to (fairly) receive material.

The case is important for both owners and users of copyrighted works in Canada.  It establishes that a collective’s license and its associated tariffs are not mandatory while reminding those who opt out and copy without permission that they may be liable for infringement, subject to any defences.