A consortium comprised of the Ministries of Education of ten Canadian provinces and territories, alongside numerous school boards in Ontario (the "Plaintiffs"), pursued a refund from Access Copyright (the "Defendant"), a collective society representing authors and publishers. The refund aimed to rectify significant overpayments of royalties made during the 2010-2012 tariff period. During this period, the Plaintiffs operated as licensees under a Copyright Board tariff (the "Tariff"), obliging them to pay royalties to Access Copyright.
The Defendant contested the refund, arguing that the Plaintiffs remained its licensees during the 2013-2015 period. Despite the lack of payments during this time, Access Copyright asserted that the Plaintiffs were liable for compensable copies of works in its repertoire. However, the Plaintiffs contended that they had opted out of the certified tariff for the 2013-2015 period. They cited fair dealing amendments to the Copyright Act in 2012, which provided exceptions for educational purposes, as well as a Supreme Court decision that expanded fair dealing rights in educational institutions.
In February 2024, the Federal Court of Canada ruled that the Plaintiffs were not statutory licensees during the 2013-2015 tariff period, emphasizing the voluntary nature of licenses under the Copyright Act's tariff regime. Despite the Tariff covering 2010-2015, its finalization in 2018 precluded the Plaintiffs' classification as licensees before that date, as they lacked knowledge of the tariff's final rates and terms.
Furthermore, the Court dismissed Access Copyright's claims of prior payment offers by the Plaintiffs, citing their refusal to pay invoices and explicit communication of opting out of the Tariff. Rejecting reliance on parliamentary statements as evidence, the Court also ruled that the Plaintiffs were not liable to pay Access Copyright royalties or equitable remedies, upholding copyright law's statutory foundation.
The Court's decision underscored the voluntary nature of Copyright Board tariffs and emphasized fair dealing protections for educational institutions. While the case lacked evidence of compensable copying by the Plaintiffs, it highlighted the importance of careful consideration when relying on fair dealing rights. Additionally, the Court's refusal to extend remedies beyond those specified in the Copyright Act reinforced the need for licensors to structure agreements to access statutory remedies effectively. Access Copyright did not appeal the ruling.
Fasken successfully represented the plaintiffs in connection with this dispute with a team comprised of J. Aidan O'Neill, Alexandra Logvin, Anna Martelli (paralegal/law clerk) , and Alessandra Puopolo (articling student).
Jurisdictions
- Canada
- Ontario
- Alberta