Docket: T-578-13
Citation: 2017 FC 669
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BETWEEN:
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THE CANADIAN
COPYRIGHT LICENSING AGENCY ("ACCESS COPYRIGHT")
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Plaintiff/
Defendant by
Counterclaim
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and
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YORK UNIVERSITY
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Defendant/
Plaintiff by
Counterclaim
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REASONS
FOR JUDGMENT
TABLE OF CONTENTS
PHELAN J.
I.
Introduction
[1]
This is an action by The Canadian Copyright
Licensing Agency (“Access Copyright”) [Access] against York University [York]
to enforce an Interim Tariff first issued by the Copyright Board of Canada
[Copyright Board or Board] on December 13, 2010 (as subsequently varied during
its term) in respect to copying activities engaged in by its employees in the
period September 1, 2011 to December 31, 2013.
[2]
York counterclaims seeking a declaration that
any reproductions made fell within the Fair Dealing Guidelines it issued and
therefore constitute the exception for “fair dealing”
under s 29 of the Copyright Act, RSC 1985, c C-42 [Act]. The declaration
sought covers all reproductions of all copyright-protected works made prior to April
8, 2013 and thereafter, regardless of whether such works are part of Access’s
repertoire.
[3]
For ease of reference, the key provisions of the
Guidelines are outlined below while the full text is attached as Schedule A.
II. FAIR DEALING GUIDELINES
1. Teaching
Staff* and Other Staff** may copy, in paper or electronic form, Short Excerpts
(defined below) from a copyright protected work, which includes literary works,
musical scores, sound recordings, and audiovisual works (collectively, a “Work”
within the university environment for the purposes of research, private study,
criticism, review, news reporting, education, satire or parody in accordance
with these Guidelines. [Definitions omitted]
2. The
copy must be a “Short Excerpt”, which means that it is either:
10% or less of a Work, or
No more than:
a) one
chapter from a book;
b) a
single article from a periodical;
c) an
entire artistic work (including a painting, photograph, diagram, drawing, map,
chart and plan) from a Work containing other artistic works;
d) an
entire single poem or musical score from a Work containing other poems or
musical scores; or
e) an
entire entry from an encyclopedia, annotated bibliography, dictionary or
similar reference work,
whichever is greater.
3. The
Short Excerpt in each case must contain no more of the work than is required in
order to achieve the fair dealing purpose;
4. A
single copy of a short excerpt from a copyright-protected work may be provided
or communicated to each student enroled in a class or course:
a) as
a class handout;
b) as a posting to a learning or course
management system (e.g. Moodle or Quickr) that is password protected or
otherwise restricted to students of the university; or
c) as part of a course pack.
[4]
The amount of material that this case touches upon
is vast – it covers virtually all of York’s libraries and course content. The
evidence was similarly vast and the case difficult and complex. But for the
work of the case management judge, Prothonotary Aalto, this trial would have
been unmanageable despite the best efforts of counsel for the parties.
II.
Issues
[5]
In the main action, the issue is “whether the interim tariff issued by the Copyright Board on
December 23, 2010 as amended is enforceable against York”.
In
the counterclaim, the issue is “was York’s dealings
fair for the purposes of s 29 of the Act”. The net effect would be that
if the Interim Tariff was enforceable and royalties were therefore payable,
York would be exempt from paying because of “fair
dealing”.
[6]
The trial management process set out the
specific issues as follows:
A.
Main Action
1.
The issues relating to whether the Interim
Tariff is enforceable against York are:
a)
Whether Access can sue for amounts allegedly due
under the Interim Tariff, namely:
i)
Is the Interim Tariff an “approved tariff” for the purposes of section 68.2(1)
of the Copyright Act?
ii)
Is the Interim Tariff otherwise enforceable pursuant
to section 66.7(2) of the Copyright Act and Rule 424(2) of the Federal
Courts Rules?
b)
Whether the Interim Tariff is voluntary, whether
York can elect whether or not to operate under it, and whether it has any
application to York.
c)
Whether, after August 31, 2011, any “employee” of York, “Student”,
“Professor”, “Library
Worker”, “volunteer”, or “other persons” (as those terms are used in the
Interim Tariff) was a “Licensee” under the
Interim Tariff. (It was not necessary to answer this question given the finding
on York’s vicarious liability nor was the issue substantially addressed.)
2.
Whether the Interim Tariff extends to acts of
authorizing the reproduction of copyright-protected works falling within the
ambit of the Interim Tariff.
3.
Whether the activities of the professors
relating to reproductions alleged to have been made by Keele Copy Centre Inc.
of the Schedule B Works are activities for which York is responsible.
B.
Counterclaim
4.
Whether any reproductions made that fall within
York’s Fair Dealing Guidelines constitute fair dealing pursuant to ss 29, 29.1
or 29.2 of the Copyright Act.
5.
Whether the declaratory relief sought in
subparagraphs 25(a)(i), (ii), and (iii) of York’s amended statement of defence
and counterclaim should be granted.
III.
Summary of Conclusions
A.
Interim Tariff – Main Action
[7]
The Interim Tariff is mandatory and enforceable
against York. To hold otherwise would be to frustrate the purpose of the tariff
scheme of the Act and the broad powers given to the Board to make an interim
decision pursuant to s 66.51 of the Act, and to choose form over substance. The
Act is quite specific in terms of the Board’s powers in this regard:
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66.51 The Board may, on application,
make an interim decision.
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66.51
La Commission peut, sur demande, rendre des décisions provisoires.
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[8]
The Interim Tariff was imposed because of
objections to the proposed final tariff governing the photocopying at York and
other post-secondary educational institutions. The Interim Tariff was not
published in the Canada Gazette (and this was one of York’s principal defences
against enforcement). However, all of the interested parties were already part
of the process by virtue of the tariff application filed by Access (including
the then-named Association of Universities and Community Colleges [AUCC], which
represented the interests of York) and the parties had actual notice of the
Interim Tariff by virtue of their participation in the tariff application
process.
[9]
In addition, public notice was effected by the Board’s
order to Access to post the interim decision on Access’s website and take all
reasonable steps to alert the community of post-secondary educational institutions
of the Board’s order.
[10]
It is noteworthy that the Interim Tariff was
never judicially reviewed. York’s defence against the action for enforcement of
the Interim Tariff smacked of a collateral attack on the Board’s decision.
[11]
In the final analysis, I find that the Interim
Tariff is mandatory, not voluntary. Many factors point to the mandatory nature
of the Interim Tariff including the scheme of the Act, the Act’s legislative
history, and the ordinary meaning of the term “tariff”.
[12]
York’s reliance on the Supreme Court’s decision
in Canadian Broadcasting Corp v SODRAC 2003 Inc, 2015 SCC 57, [2015] 3
SCR 615 [SODRAC], is misplaced because the provision for tariff setting in
the present case is distinct from the provisions for licence-term arbitration
relevant to the SODRAC decision.
[13]
While there are several exceptions to the Act
and to the provisions governing tariff setting, including statutory defences such
as “fair dealing” and exceptions for obtaining
permission for reproduction, these are nevertheless exceptions to an otherwise
mandatory scheme. Further, those exceptions are not applicable in these
circumstances.
B.
Fair Dealing – Counterclaim
[14]
York’s own Fair Dealing Guidelines [Guidelines]
are not fair in either their terms or their application. The Guidelines do not
withstand the application of the two-part test laid down by Supreme Court of
Canada jurisprudence to determine this issue. The relevant provisions state:
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29 Fair dealing for the purpose of
research, private study, education, parody or satire does not infringe
copyright.
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29
L’utilisation équitable d’une oeuvre ou de tout autre objet du droit d’auteur
aux fins d’étude privée, de recherche, d’éducation, de parodie ou de satire
ne constitue pas une violation du droit d’auteur.
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29.1 Fair dealing for the purpose of
criticism or review does not infringe copyright if the following are
mentioned:
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29.1
L’utilisation équitable d’une oeuvre ou de tout autre objet du droit d’auteur
aux fins de critique ou de compte rendu ne constitue pas une violation du
droit d’auteur à la condition que soient mentionnés :
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(a) the source; and
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a) d’une part, la source;
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(b) if given in the source, the name of the
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b) d’autre part, si ces renseignements
figurent dans la source :
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(i) author, in the case of a work,
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(i) dans le cas d’une oeuvre, le nom de
l’auteur,
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(ii) performer, in the case of a performer’s performance,
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(ii) dans le cas d’une prestation, le nom de
l’artiste-interprète,
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(iii) maker, in the case of a sound recording, or
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(iii) dans le cas d’un enregistrement sonore,
le nom du producteur,
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(iv) broadcaster, in the case of a communication signal.
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(iv) dans le cas d’un signal de communication,
le nom du radiodiffuseur.
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29.2 Fair dealing for the purpose of
news reporting does not infringe copyright if the following are mentioned:
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29.2
L’utilisation équitable d’une oeuvre ou de tout autre objet du droit d’auteur
pour la communication des nouvelles ne constitue pas une violation du droit
d’auteur à la condition que soient mentionnés :
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(a) the source; and
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a) d’une part, la source;
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(b) if given in the source, the name of the
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b) d’autre part, si ces renseignements
figurent dans la source :
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(i) author, in the case of a work,
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(i) dans le cas d’une oeuvre, le nom de
l’auteur,
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(ii) performer, in the case of a performer’s performance,
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(ii) dans le cas d’une prestation, le nom de
l’artiste-interprète,
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(iii) maker, in the case of a sound recording, or
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(iii) dans le cas d’un enregistrement sonore,
le nom du producteur,
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(iv) broadcaster, in the case of a communication signal.
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(iv) dans le cas d’un signal de communication,
le nom du radiodiffuseur.
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[15]
York’s dealing with copyrighted material satisfies
part one of the test in that it falls within the enumerated activities in s 29
– specifically, education, research, and private study. There is no real issue
that York met the first prong of the fair dealing provision – that the
photocopying was done for allowable educational purposes.
[16]
This finding only in part addresses the first
factor of the second part of the test – the purpose of the dealing. The
remaining factors to be considered under the second part of the test are the
character of the dealing, the amount of the dealing, alternatives to the
dealing, the nature of the work, and the effect of the dealing.
[17]
In respect of the “character
of the dealing” factor, the Court finds that the better measure of the
dealing is the overall number of exposures (as per Gauthier’s evidence) rather
than the number of exposures per full-time equivalent [FTE] student (as per
Wilk’s evidence). The FTE evidence suffered from significant reliability
concerns.
Further,
the FTE evidence is less useful because (a) the data is not sufficiently
disaggregated to draw conclusions about smaller sub-groups and (b) it would
obscure the Court’s perspective to focus only on the copying per FTE rather
than the entire amount of copying done at York.
[18]
The character of the dealing factor is not
particularly helpful on its own, but it becomes more meaningful when considered
together with the other fairness factors. However, this wide-ranging, large
volume copying tends toward unfairness.
[19]
Under the factor of the “amount
of the dealing”, the Court had to consider how much of a work was copied
and whether the delineated allowable amount or “threshold”
under the Guidelines (10% of a book or articles in a journal, etc.) is fair.
This was a core area of focus in this case.
[20]
Quantitatively, the Guidelines set these fixed
and arbitrary limits on copying (thresholds) without addressing what makes these
limits fair. The fact that the Guidelines could allow for copying of up to 100%
of the work of a particular author, so long as the copying was divided up
between courses, indicates that the Guidelines are arbitrary and are not
soundly based in principle.
[21]
An example suffices to illustrate. The classic
story, The Hockey Sweater, would benefit
from copyright protection if it was copied on its own, but is deprived of
protection if it is copied from an anthology. The Guidelines make an arbitrary
distinction for protection based on the format of publication.
York
has not satisfied the fairness aspect of the quantitative amount of the
dealing. There is no explanation why 10% or a single article or any other
limitation is fair.
[22]
Qualitatively, the parts copied can be the core
of an author’s work, even to the extent of 100% of the work. No explanation is
given for this provision of the Guidelines. This is equally as unfair as the
quantitative aspect.
[23]
In regards to “alternatives
to the dealing”, York has not made out a case that there are no
alternatives to its dealing. The dealing at issue includes copying entire
required course readings (coursepacks) without compensation to the author or
publisher, simply because such copying can be done digitally with the product
residing in a computer database rather than on the stacks in a library.
[24]
The justification of cheaper access cannot be a
determinative factor, since in that respect it is always better for users to
get for free that which they have had to pay for in the past.
[25]
The effect of the dealing on the market is
complicated in this case. It is almost axiomatic that allowing universities to
copy for free that which they previously paid for would have a direct and
adverse effect on writers and publishers. In terms of a more thorough analysis
of those impacts, I prefer the expert evidence of Dobner over that of
Chodorowicz and Davidson, whose evidence did not survive cross-examination.
Dobner’s evidence shows the nature and extent of the adverse impacts.
[26]
The question of impacts on the market from a
broader perspective is more complicated because of the multitude of factors
impacting publication generally. This whole field is in flux with the transition
over the last decade to digitalization, increased peer-to-peer sharing, and the
use of databases and programs as a means of distributing materials to students (such
as Moodle). It would be impossible to isolate each factor and separately weigh
its contribution to market impacts. It is sufficient here for Access to prove,
as it has, that the market for the works (and physical copying thereof) has decreased
because of the Guidelines, along with other factors. It is also sufficient for Access
to establish, as it did, that copying done under the Guidelines is likely to
compete in the market for the original works.
[27]
These negative impacts, from both a narrow and
broader perspective, further point to the unfairness of York’s dealing.
[28]
A further and final factor of the fairness of
the Guidelines is that York has made no real effort to review, audit, or
enforce its own Guidelines. As became evident, educational efforts on setting
their copyright rules are insufficient because there was no effective
compliance mechanism. Even professors operating outside of the Guidelines are
not held accountable. The complete abrogation of any meaningful effort to
ensure compliance with the Guidelines – as if the Guidelines put copyright
compliance on autopilot – underscores the unfairness of York’s Guidelines.
[29]
These points are discussed more fully in the
body of these Reasons.
IV.
The Parties
A.
Access Copyright
[30]
Access is a collective society under the Act.
It administers the reproduction rights of copyright in published literary works
in Canada, except for the Province of Quebec, on behalf of creators and
publishers that hold copyright in those works.
[31]
The Copyright Act, RSC 1970, c C-30 [the
1970 Act] and its predecessor legislation provided for the collective
administration of performance rights, one of three copyrights covered by the
Act. The other two copyrights, the right to reproduce a work and the right to
communicate a work to the public, were excluded from collective administration.
[32]
Section 48 of the 1970 Act provided that the
performing rights society [PRS] was required to file lists of the works in
respect of which it had authority to issue or grant performing licences. The respective
PRS was required to file, with the then Minister of Consumer and Corporate
Affairs, statements of fees, charges, and royalties that it proposed to collect
in exchange for the issuance or grant of licences for the performance of works
in Canada.
[33]
Access licenses the reproduction of published
works in its repertoire (effectively its copyrighted holdings) to users of the
works, collects license fees from users, and distributes royalties to creators
and publishers.
[34]
In addition, Access receives authorization to
administer reproduction rights through affiliation agreements with Canadian
creators and publishers and through bilateral agreements with similar PRSs in
other countries and in Quebec.
[35]
Access’s role is to license the right to copy a
work in its repertoire. It does not provide actual access to any published
works or collect royalties which are generally done through licensees which are
then remitted to Access.
B.
York University
[36]
York is a university established by the
Legislative Assembly of the Province of Ontario under The York Act 1959
and continued under The York University Act 1965.
[37]
York is the second largest university in Ontario
and the third largest university in Canada, with eleven different faculties
covering undergraduate, post-graduate, and professional fields of education
located at two campuses in Toronto: Keele Campus and Glendon Campus.
[38]
York runs on an academic year basis, from
September in one year to August in the next. There are three semesters: Fall,
Winter, and Summer. Courses are usually run for a semester or they may be run
on a “full year” basis, which is September to
April (two semesters).
York
uses a credit system – a semester course is three credits and a full load for
an undergraduate student is 30 credits over two semesters in the academic year.
[39]
Between 2008 and 2014, the number of
undergraduate and graduate students at York ranged from 51,989 in 2008 to a
high of 54,590 in 2012 to 52,879 in 2014.
[40]
An important metric both in this case and in
educational reporting each year to the Ontario Ministry of Training, Colleges
and Universities for funding purposes is the number of FTEs for undergraduate
and graduate students.
Because
of the method of calculation of FTEs, which accounts for the number of York
students who do not carry a full course load, the total number of FTEs is
typically lower than the total number of students at York in any given year.
[41]
Between 2008-2009 and 2014-2015, the total FTEs
in each respective academic year ranged from 45,383 to 48,967.
[42]
In regard to teaching staff, which consisted of
full-time faculty and contract/part-time members, the full-time faculty
fluctuated between 1,528 and 1,465 over the 2008-2014 period, and contract/part-time
faculty ranged from 1,774 to 1,582 over that same period.
V.
Subject Matter
[43]
The subject matter of this litigation is the new
methods of distributing published materials to students. Generally, gone is the
single textbook for a course, gone is pulling books and publications from
library stacks, and gone is finding a way to pay for photocopying at library
run photocopiers. In part, this case involves the intersection of traditional
copying with the digital world.
[44]
At York, courses may be comprised of lectures,
labs, and/or tutorials. For a large enrolment course, it may be offered in more
than one section and taught by different instructors.
[45]
Consistent with the principle of academic
freedom, instructors choose the materials to be used in their courses.
Typically, these materials include books, journal articles, newspaper articles,
portions from collections of works, encyclopaedia, music, video, film,
software, data sets, and other published materials. Key forms of published
materials are the “printed coursepack” and the “learning management system”.
[46]
While books to be used are generally purchased
by students at the university bookstore, much of the other material used for
teaching is licensed to York’s various libraries by authors, publishers, PRSs,
and other libraries.
A.
Coursepacks
[47]
A coursepack is a bound compilation of materials
selected by the instructors and made available to students. It often contains a
course outline or syllabus, course notes, and course materials such as excerpts
from books, journal articles, and other miscellaneous materials.
[48]
During the period covered by this litigation,
coursepacks used by York students were produced internally at York by the
University Printing Services or externally at third party print shops which
were supposed to be licensed by Access. As evidenced in this case, that was not
always the case and some instructors went to a non-licensed print shop, Keele
Copy Centre [Keele], for which no sanctions were imposed by the York
administration. This is the foundation for Access’s claim that York breached Access’s
Interim Tariff.
[49]
However, York instructors generally used
internal print shops that were licensed by Access and for which Access is paid
royalties on materials in their repertoire. These authorized print shops invoice
York directly for the coursepacks.
[50]
After August 31, 2011, when York “opted out” of Access’s Interim Tariff, York also used
another Access licensed print shop, Gilmore, to produce coursepacks.
[51]
In the usual manner, coursepacks produced at
York or by Gilmore are ordered through York’s Copyright Clearance Centre
[York’s CCC], which is an organization within the university’s Printing
Services unit.
[52]
In the past, the instructors gave the York CCC
the full bibliographic details of the materials made from the coursepack and
the CCC was supposed to take over from there. In that regard, the CCC determines
the licence status of the materials, obtains transactional licences where
necessary, and/or contacts copyright owners or copyright licensing
organizations to obtain the necessary permissions. If the CCC cannot obtain
timely approvals, it is supposed to send the coursepacks to Gilmore for production
and payment to Access where appropriate or obtain transactional licenses for
materials not in Access’s repertoire.
B.
Learning Management Systems
[53]
Instructors may choose to use a learning
management system [LMS] provided by York.
[54]
An LMS is a software platform by which an
instructor can organize certain course materials and make them available to
students electronically. An LMS may also provide various functionalities to
facilitate learning, including a calendar system for assignment due dates,
discussion forums, portals for the submission of assignments, and means for
returning graded assignments and for accessing York Libraries’ electronic
resources and catalogue. York has been using LMSs since approximately 2000.
[55]
Each course and course section has its own site
on an LMS. While an LMS site can be made available to each course and course
section offered by York, use of an LMS is optional and not all instructors
choose to use an LMS for their courses.
[56]
While there are different LMSs, the most common
LMS platform used at York is called Moodle. Moodle currently accounts for over
70% of all LMS course sites at York. By the end of Summer 2016, it was
anticipated that Moodle would account for approximately 92% of all LMS course
sites at York.
[57]
An LMS provides instructors with the ability to
post course materials in various digital formats (such as PDF, Word documents,
PowerPoint slides, image files, audio files, video files, etc.) for access by
students enrolled in their courses. An LMS also allows instructors to create
links to electronic resources, including resources licensed by York’s libraries
and materials on the internet, to direct students to pertinent materials.
[58]
While York says that it has developed a number
of safeguards to ensure that materials on an LMS are only accessible by
authorized users, York has no monitoring or enforcement mechanisms to address
compliance with copyright laws or even its own policies.
[59]
As the Director of Information, Privacy and
Copyright at York, Patricia Lynch, confirmed, her initial role included
compliance monitoring and enforcement and this was changed in that monitoring
and enforcement were deleted. York developed an educational program for faculty
and staff to deal with copyright, as well as some other not very effective
procedures. It developed a “copyright attestation”
requirement to remind instructors, staff, and students of the importance of
complying with copyright guidelines when using an LMS. In as early as July
2012, some LMSs required instructors to agree to comply with copyright
guidelines before gaining access to their course sites. And since the Fall of
2013, users (including instructors and students) cannot gain access to Moodle
course sites until they agree to comply with York’s copyright guidelines.
[60]
It is not completely accurate to say that York
ignored copyright. It did set up programs where instructors and students agreed
to copy within York’s copyright guidelines and it did initiate procedures on
Moodle sites to remind users of copyright obligations. However, there was no
evidence that any of these actions were effective.
[61]
York’s Copyright Support Office [CSO] was
created in 2013 and provided copyright support services to instructors and
staff in all faculties, including services with respect to the review and
preparation of course materials for an LMS and the provision of information
sessions.
[62]
Some of the services provided by the CSO are
assistance to instructors and their support staff in identifying the copyright
status of the course materials they wish to upload to their course sites,
reviewing course materials for copyright compliance, and securing transactional
licences from copyright owners and copyright licensing organizations for
posting materials on course sites. But, as noted earlier, compliance monitoring
and enforcement were not part of the CSO’s role, nor of anyone else’s role.
VI.
Summary of Key Lay Witnesses
[63]
It is not the Court’s intention to summarize all
of the evidence heard in this case, but rather to highlight some of the key
elements heard by the Court. More specific findings are made throughout these
Reasons.
A.
Plaintiff’s Lay Witnesses
(1)
Roanie Levy
[64]
Roanie Levy, Executive Director of Access,
testified generally as to the objectives and operations of Access including its
organizational structure. She explained the importance of the educational
sector to the writers and publishers for whom Access acts. She also outlined the
impact of York’s refusal (and the refusal of other universities who were acting
similarly) to abide by the Interim Tariff and to pay the substantial amounts
said to be owing. Her evidence was unshaken by cross-examination. The history
of the relationship between Access and York is discussed later in these
Reasons.
(2)
Matthew Williams
[65]
Matthew Williams, Vice-President of Publishing
Operations at House of Anansi Press and Groundwood Books, appeared also in his
capacity as President of the Association of Canadian Publishers. His corporate
evidence related primarily to trade bookstores rather than education; however,
he gave evidence on behalf of the Association and particularly on the impact of
the York Guidelines in reducing revenues for publishers. In cross-examination
he showed how royalties to Anansi had been declining, particularly at York
(details of which were given in confidence). His evidence also underscored the
changes in the publishing world from traditional books to e-books.
(3)
Michael Andrews
[66]
Along the same lines but with greater
experience, Michael Andrews, Senior Vice-President and Chief Financial Officer
of Nelson Education and Interim CEO, gave evidence which was particularly
germane and balanced. Nelson Education is Canada’s largest educational
publisher for grades K-12 and higher education. Some of the details of the
financial aspects of the business are confidential and need not be repeated
here. Higher education was a significant part of the company’s business.
In
describing post-secondary educational products, he divided them into three groups
– indigenous (Canadian origin or Canadianization by adaptation of another
country’s work), agency (another country’s work unchanged), and custom
(bringing different chapters together to create what a professor requires).
[67]
He described how the higher education market had
been in decline for at least five years. Illegal sites and peer-to-peer sharing,
plus copying done by professors in coursepacks and Moodle, have contributed to
this decline. While coursepacks for professors contributed to the decline in
publication, the relationship with professors is complex because professors are
also the authors of materials published by publishers such as Nelson.
[68]
Importantly, Andrews’ evidence of the decline in
Access’s revenues and the adverse impact on this educational publisher is
consistent with the expert evidence called by Access (including, to some extent,
the survey evidence filed). Also importantly, he admitted that conversion to
new digital products would happen with or without fair dealing guidelines – that
this is a market reality.
(4)
Glenn Rollans
[69]
Glenn Rollans, Co-owner of Brush Education (an
independent higher education publisher), President of the Book Publishers
Association of Alberta, and Vice-President of the Association of Canadian
Publishers, gave similar evidence of the decline in Canadian educational
publishing and the impact of changing technology. He confirmed, as did others,
that York did not involve his organizations in the development of their
Guidelines.
(5)
David Swail
[70]
The Plaintiff also called David Swail, Executive
Director of the Canadian Publishers’ Council and former President and CEO of
McGraw-Hill Ryerson. His evidence, garnered from years of experience, was helpful
in understanding the causes of the decline in the sale of primary resources.
The principal causes were unauthorized copying (peer-to-peer sharing,
unauthorized physical copying). He also outlined the increasing role of e-books
and the ability to buy individual chapters through e-book platforms. Given the
terms of the Guidelines, this is a significant factor as discussed later in the
context of alternatives to copying and the Guidelines.
(6)
Writers’ Union
[71]
Evidence from the Writers’ Union also confirmed
the decline in revenues and the absence of contact from York when York
developed its Guidelines.
B.
Defendant’s Lay Witnesses
[72]
The Defendant called fourteen (14) lay witnesses
in addition to its three (3) experts. Some were called in respect to the
Interim Tariff, others in respect of the Guidelines, and some covered both
issues.
(1)
Patricia Lynch
[73]
Patricia Lynch played a significant role, both
in respect of York’s defence to the Interim Tariff claim as well as in the
counterclaim regarding the Guidelines.
[74]
Lynch was the Director of Information, Privacy
and Copyright at York. She was the principal administrator of license
agreements with Access, which involved ensuring that copying was done according
to York’s agreement with Access and that relevant fees were paid.
[75]
Lynch described the process by which York moved
away from dealing with Access. She explained that by September 1, 2011, York
was not operating with Access through either an agreement or a tariff. She indicated
that her role became that of an educator on copyright, and she ran
non-mandatory educational sessions (for which attendance was not recorded) on
the new regime of Fair Dealing Guidelines.
She
spearheaded the matter of authorized copy shops and encouraged the use of the
Copyright Office in preparing materials, even offering to review copyrighted
material used in courses in any format.
[76]
Her evidence confirmed that while she was committed
to the protection of copyright, there was no organizational support for
monitoring or enforcement of copyright obligations including compliance with
the Guidelines. Her job description referred to a role of monitoring and
auditing compliance, but she never engaged in those roles and her job evolved
away from such mechanisms to one of persuasion and education.
[77]
According to Lynch, the York University Faculty
Association objected to any form of monitoring or enforcement of compliance
with the Guidelines implemented in December 2010.
[78]
As established in Lynch’s cross-examination,
there was no auditing, sampling, or monitoring of compliance. York did not
implement safeguards such as periodic reviews. Of the 27% of exposures
described as exceeding the Guidelines by the expert Wilk (discussed later), no
transactional permissions were sought. York did not produce a single permission
document for any the 1,252 items captured in the sampling.
[79]
In sum, Lynch’s evidence established that while
her intentions to educate were sincere, there was a complete absence of
meaningful review of compliance with the Guidelines.
(2)
Professors and Administrators
[80]
York called a number of professors to give
evidence of their use of teaching materials. The professors confirmed their
freedom to choose material, their use of copied material, and their strong
preference for using coursepacks and Moodle. None of the professors were
subject to any form of process to ensure compliance with the Guidelines.
[81]
Vice-Provost Academic Alice Pitt gave evidence
about the importance of academic freedom. She stated that any form of
monitoring would have staffing and cost implications. She also feared that any
form of compliance monitoring or auditing would raise issues of academic
freedom with faculty and staff.
[82]
It appeared, from the evidence of professors and
academic administrators, that compliance with the Guidelines raised internal
academic freedom issues that were not worth the “battle”.
VII.
Summary of Key Expert Evidence
A.
General
[83]
A significant problem in this case is that there
is no record of the number of copyrighted pages actually copied. That issue not
only affects the compensation owed to Access, but also implicates one of the
factors the Court is required to assess when considering whether the Fair
Dealing Guidelines actually are fair (that is, the amount of the dealing).
[84]
Neither party realistically suggests that the
impugned copying was de minimis or insignificant, but precise
calculation was a problem. A surrogate for data on the actual “copied” pages was to use sampling data and to
extrapolate estimates of copying from this sampling data. A secondary issue of
that exercise is the appropriate measure of copying – by student (FTE) or by
exposure (assumed to be a photocopy per page).
[85]
In addition to this quantification exercise, the
Court had to consider, under the operation of the Guidelines, the impact of the
Guidelines on persons who had an interest in the works – Access, authors, and
publishers. This raised the issue of the use of surveys, to which York objected.
For reasons given at trial, the survey evidence was admitted; however, this
case is not an exercise of the quantification of harm, so the impact of the
surveys was more confirmatory of what common sense suggests – that if one is
deprived of revenue which had been received in the past, one is likely to be
adversely affected. It is important to recognize that this litigation is not
about government assisted funding to the “arts”
or other similar matters of broad social policy. It is also not about subsidies
(overt or opaque) to writers and publishers.
[86]
Finally, as a general rule, the Court found the
expert evidence of the Plaintiff more credible and compelling. It was more
rigorous, coherent, and consistent, and it suffered from fewer flaws than the
evidence of the Defendant.
B.
Sampling Issues
[87]
Due to the volume of materials which could be
covered by this litigation – essentially all the works in York libraries and
the non-recorded copying of materials distributed to students – it was
necessary to devise a means to calculate the amount of materials which could
have been copied and would have been subject to the Interim Tariff and/or
encompassed by the Fair Dealing Guidelines.
[88]
The parties conducted sampling of two different
types of items at York: a) items in coursepacks produced internally by York’s
Printing Services and b) PDFs posted on LMSs by York’s staff. The sampling was
done as a “pre-test” (to ensure that the
sampling would work) and “main” (the sampling
itself) and covered the period September 1, 2011 to December 31, 2013 (the
period of the Interim Tariff after York stopped operating under the Interim
Tariff).
[89]
A total of 565 items were selected for the
coursepack sampling and a total of 1,247 PDFs were selected for the LMS
sampling. The details of the samplings, contents, and sources are set out in
the evidence and need not be repeated here.
[90]
As indicated earlier, both the FTEs and the
number of unique users were used in the respective experts’ analyses.
[91]
In respect of the published works in the sample
items, York adduced a number and variety of documents and records to
demonstrate that there were permissions to use many of the works used in the
coursepacks and on the LMSs.
As
indicated later in these Reasons, York’s reliance on permissions was misplaced and
of no assistance.
[92]
The results of the sampling, the extrapolations
therefrom, and the conclusions drawn by the respective experts have been previously
discussed and the Court’s acceptance of the Plaintiff’s experts underscored.
The differences between the experts on some matters were significant. For
example, Gauthier, on behalf of Access, estimated that over 160,000 items were
copied for coursepacks at York between January 2005 and August 2011 – more than
20,000 per year.
[93]
York dismissed this matter by contending that
the copying was either subject to permissions or was within the quantitative
limits of the Guidelines, despite the Guidelines not being in effect in that
period and the matter of permissions/licences being of no real assistance.
[94]
Discounting permissions and licences, both
parties’ experts concluded that approximately 11% of documents in the LMS
sample exceeded the Guidelines. Not only is this a significant amount of
unauthorized copying even if the Guidelines are assumed to be a valid response
to copyright claims, but if the Guidelines are not valid (as found by this
Court), then the amount of unauthorized copying is significantly higher.
C.
Plaintiff’s Experts
(1)
Benoît Gauthier
[95]
A principal expert in this litigation was Benoît
Gauthier, a business evaluator with experience in surveys. His qualifications
were not challenged, subject to the Defendant’s objection to his survey
evidence.
[96]
Gauthier had a four-fold mandate:
1.
To advise on sampling methodology to collect
relevant data in order to measure the volume of print and digital copying of
published works at York from September 1, 2011 to December 31, 2013, and to
perform calculations on various data sets to report information about such
copying to Access;
2.
To perform calculations on various data sets in order
to report information about copying for the production of coursepacks (through
the internal printing services and external copy shops) to Access;
3.
To assist in the development of a 2014 online
survey questionnaire addressed to member companies of the Association of
Canadian Publishers and to provide feedback regarding the wording and design of
the questionnaire, to design an online version, to conduct a pre-test of the
online questionnaire, to manage the online data collection for September to
October 2014, and to provide the data collected to PricewaterhouseCoopers LLP;
and,
4.
To design and conduct a 2013 survey of Access’s
creator affiliates concerning the copying of their published works in the
educational sector and to provide a report that was filed in proceedings before
the Board.
[97]
In summary, Gauthier’s evidence was that:
a)
From January 2005 to August 2011, York’s
internal coursepack printing services made approximately 122 million print
exposures of published works that were included in coursepacks for which York
remitted royalty payments to Access. Approximately 80% of those print exposures
came from books.
b)
From January 2011 to December 2015, copy shops
made, on behalf of York, approximately 29 million print exposures of published
works included in coursepacks. Over 90% of that copying was from books.
c)
From September 2011 to December 2013, York
Printing Services made approximately 2.9 million print exposures of published
works included in coursepacks that are, according to Access, relevant to York’s
Fair Dealing Guidelines counterclaim. Relevance to the counterclaim in this
instance means that Access has identified the work as requiring permission,
authorization, or payment to copy.
d)
The volume of coursepacks produced internally by
York decreased significantly after August 2011.
e)
From September 2011 to December 2013, over 16
million digital exposures of published works (that are, according to Access,
relevant to York’s Fair Dealing Guidelines) were posted and copied on York’s
LMSs.
f)
From 2012 to 2013, the volume of digital
exposures of published works purportedly relevant to York’s Fair Dealing Guidelines
counterclaim doubled from approximately 4.5 million to 9 million.
g)
A comparison of the volume of print copying
versus digital copying from 2011-2013 suggests that copying behaviour at York
is shifting from print coursepacks to posting and copying works on an LMS.
[98]
While Gauthier did not adjust his estimate of
print and digital exposures to account for York’s claim that some of the items
captured in the sampling were copied or posted with permission, this does not significantly
undermine the conclusions which can be drawn. The report may overstate some of
the copying, but since York had the data it was incumbent on them to establish
quantum and materiality.
[99]
The data on coursepacks was voluminous. As an
example, between January 1, 2005 and August 31, 2011, there were 122 million
exposures. The vast majority of this material and of similar material for copy
shop exposures and internal coursepacks produced by York fell within the
quantitative limits set by York’s Guidelines.
[100] In respect of LMSs, Access and York agreed to design and implement a
study of the copying of published work by staff on LMSs. The result was that
16.3 million digital exposures relevant to fair dealing were posted on York’s
LMSs between September 2011 and December 2013. Generally, 70% of the volume of
copying on LMS systems fell within the quantitative limits of York’s
Guidelines.
[101] An issue arose as to the best representative base from which to assess
the copies – enrolment versus unique user access (essentially the number of
people with an access number). Gauthier was instructed to use enrolment.
[102] The evidence establishes that neither base is necessarily superior and
that each had its flaws. I have concluded that the base used by Gauthier was
reasonable and therefore his conclusions stand.
[103] Gauthier’s role in the Publisher’s Survey was to assist in the
development of the survey, to ensure the questionnaire was valid and reliable,
and to ensure that it had integrity. He did not, however, analyse the data. The
survey was sent to 150 publishers of the 600 Access affiliates. The survey was
not directed specifically at copying at York or income produced and used at
York.
[104] Gauthier’s role with respect to the Creator’s Survey was somewhat
the same as to design, reliability, and validity. The survey had a 42% response
rate, which is a high response for surveys.
[105] Gauthier established the reliability, integrity, and validity of
both surveys, which is a threshold issue on the admissibility of survey
evidence. However, the Creator’s Survey in particular produced little
significant evidence relevant to this case.
(2)
Michael Dobner
[106]
Gauthier’s evidence was also in support of the
expert opinion report of Michael Dobner of PricewaterhouseCoopers LLP [PwC].
Dobner had post-graduate education in economics and expertise in business
valuations. He was qualified, without objection, to give expert evidence in
respect of the economic losses to a business from a specific event or events.
As
indicated earlier, I found his evidence to be thorough, thoughtful, and
compelling. His evidence provided considerable assistance to the Court. His
opinions on various matters were consistent with the other evidence heard at
this trial. They are particularly relevant to the analysis of the “fair dealing” exception and the determination of
whether York’s Guidelines are fair in light of the effects of the dealing.
[107] PwC was retained to prepare a report of its assessment of the
apparent and expected impacts:
1.
The adoption of the Fair Dealing Guidelines by
York on the market for copyright-protected works produced, used, and copied in
the post-secondary education market; and,
2.
The adoption of identical or substantially
similar guidelines on that market by:
a.
Universities Canada;
b.
Colleges and Institutes Canada;
c.
The Council of Ministers of Education, Canada
[CMEC]; and,
d.
Canadian post-secondary educational
institutions.
PwC was also asked
to estimate the loss of royalty revenue by publishers and creators arising from
the adoption of the Guidelines by York and other post-secondary institutions.
[108] In summary, Dobner’s findings and opinions were:
a)
The post-secondary educational publishing
industry in Canada, which has been facing numerous challenges in recent years,
cannot withstand the adoption of the Guidelines without significant adverse
impacts on the works it produces.
b)
Based on the data available, the estimated
result of full adoption of the Guidelines by post-secondary institutions in
Canada (outside of Quebec) would be annual loss of licensing royalties in the
range of $10,041,000 to $14,675,000. York’s share of that amount would be
$800,000 to $1,285,000.
c)
Since the introduction of the Guidelines, there
has been an acceleration in the decline in sales of works produced by content
producers for the post-secondary market.
d)
Since the introduction of the Guidelines, there
has been a transfer of wealth from content producers to content users, somewhat
offset in the short-term by an increase of prices for published works.
e)
The adoption of the Guidelines by York and other
post-secondary institutions has led to a lack of transparency regarding copying
activities, meaning that content producers are unable to effectively detect
infringement or to assert their intellectual property rights in a meaningful
way. Evidence suggests that this has led to an atmosphere in which copying in
excess of the Guidelines occurs and is tolerated by the institutions.
f)
The educational publishing industry is currently
in a period of transition from traditional textbook publishing to digital
content and services, but this requires significant investment. The financial
impact of the Guidelines limits the publishing industry’s ability and
incentives to invest in this economy. Small to medium-sized enterprises [SMEs]
are substantially more vulnerable.
g)
The likely long-term impacts of the adoption of
the Guidelines is that:
-
Some SME publishers producing educational
content are expected to exit the business;
-
Creators are expected to reduce the number of
works they create, the time they spend creating, and the focus on
post-secondary educational content;
-
Content producers are expected to produce less
content and invest less in the Canadian market. In particular, they will reduce
product offerings for subjects without sufficient scale, demand, and
requirements for current content;
-
Continued decline in sales will force publishers
to increase prices to offset loss of economies of scale; and,
-
Users of post-secondary educational content will
be faced with deterioration in the quality, diversity, and ingenuity of works
in certain subjects, as well as higher prices.
h)
The adoption of the Guidelines will have
significant negative implications for the industry’s economic footprint in
Canada, which totaled an estimated $550 million and $490 million in 2011 and
2015, respectively. Negative impacts will likely emerge in the long run, including:
-
loss of high paying jobs,
-
reduced investment that will limit productivity
growth,
-
a shift in some areas from content production in
Canada to imported content, and
-
a consolidation in the post-secondary
educational market (i.e. large, mostly foreign-based publishers).
[109] Dobner had some important observations about the role of
collectives which are consistent with the purpose of collectives as recognized
in the legislation. An aspect of copyright, a right recognized by the Supreme
Court of Canada as a shared right, is the encouragement and incentive to
produce new, original, and creative works. Part of that incentive is the
compensation to be paid to creators. Copyright collectives reduce the
transaction cost associated with administering copyright while ensuring that
owners (creators) are remunerated for use of their works.
[110] Dobner also recognized the problem posed by the significant number
of works affected by the Guidelines and the difficulty of establishing the
effect of the dealing on a particular work. He also acknowledged the difficulty
in detecting the full impact of the adoption of the Guidelines on the market
for the works as a whole because some of the negative impacts resulted from
other factors, many of which are technological changes such as digitalization.
[111] Having recognized that there are limitations to the information and
the ability to analyse the impacts of the Guidelines, I find that the impacts
are those which Dobner described. The impacts are more qualitative and
directional than quantitative.
[112] However, there are some quantitative aspects which support the
qualitative conclusions. For example:
a)
Access’s post-secondary distributions of
licensing revenue to content producers declined from $14.2 million in 2008 to
$9.8 million in 2010. Between 2010 and 2014, revenues fluctuated before
declining to $6.6 million in 2015.
b)
The most recent decline is primarily the result
of a reduction in the number of institutions that held licensing agreements
with Access and the level of coursepack reporting from external copy shops.
Distributions are expected to decline to $1.3 million in 2016.
c)
Since the introduction of the Guidelines,
permissions licensing requests and associated revenues have declined
substantially and are considered insignificant.
d)
The economic footprint of the post-secondary
educational publishing market is significant in the Canadian economy in terms
of output, jobs, GDP, and tax revenue, but this footprint has shrunk in recent
years. The industry’s estimated GDP footprint declined by 11% from 2011 to
2015. Publishing industry jobs are relatively high value (with an average
salary more than 45% higher than the Canadian average across all industries):
-
The total economic footprint of the
post-secondary educational publishing industry was $1.06 billion in 2011, with
a GDP of $550 million. This can be contrasted with its 2015 output of $950
million and $490 million GDP.
-
The post-secondary educational publishing
industry has a significant economic footprint comprising over 5,000 jobs on a
full-time equivalent basis across numerous industries in 2015. This is an 11%
decline from 2011.
[113] Furthermore, sales revenue declined by 13% from 2010-2015 in the
post-secondary market. The declining sales have weakened the industry’s ability
to change its business model to develop innovative digital content and
services.
[114] The decline in the market size is driven by:
a)
the transition to digital publishing,
b)
the growth of the used book market,
c)
rental programs for post-secondary textbooks,
d)
technological advancements that make copying
easier,
e)
the prevalence of copyright infringement,
evidenced in an increase in peer-to-peer file sharing and downloading, and
f)
the adoption of the Guidelines, which have
exacerbated the infringement issue.
[115] Dobner’s Report contained fairly detailed descriptions of the
impacts of the Guidelines, both at York and, if adopted, across Canada. A
critical aspect is that copies are substitutes for the original and excerpts
can be suitable substitutes for the original works. As such, the demand for the
original works will decline with the corresponding negative effective on
owners.
[116] Dobner points out that copying in excess of the Guidelines is a
significant problem – for example, as Gauthier reported, 29% of the copying of
books at York on the LMSs from September 2011 to December 2013 exceeded or
would have exceeded the Guidelines.
[117] The problem, succinctly put, is that the Guidelines, assuming they
are fair, become unfair or, alternatively, the unfairness of the Guidelines is
exacerbated because of the amount of non-Guideline compliant copying.
[118] This expert evidence confirmed the concerns expressed by Access and
by its witnesses, both with respect to the problem of non-remunerated copying
but equally importantly with respect to the long-term effect into the future.
[119] As the evidence of the York witnesses confirmed, post-secondary
education budgets are being tightened but the demand for services (materials)
is expanding. The absence of tariff payments, the Guidelines, and their
non-compliance results in the wealth transfer referred to by Dobner from copyright
owners to educational institutions.
D.
Defendant’s Experts
[120] To counter the Plaintiff’s experts, the Defendant called three
experts: Dr. Piotr Wilk, A. Scott Davidson, and Dustin Chodorowicz. They were
not able, either collectively or individually, to overcome the merits of the
Plaintiff’s experts. These experts were much more focused on criticizing the
Plaintiff’s experts than on providing the Court with alternative conclusions.
(1)
Dr. Piotr Wilk
[121] Wilk held post-graduate degrees and teaching experience in methods
of data collection and in data analysis. He was qualified to give expert
evidence in sampling methods, analysis, and explanation.
His
mandate was to analyse the data collected in the two studies (the Coursepack
Study and the LMS Study), to advise York’s counsel on various elements of the
sampling design of the two studies, and to review and perform an independent
analysis of the Gauthier Report.
[122] In summary, Wilk’s evidence was that:
a)
From September 1, 2011 to December 31, 2013, an
estimated 6,147,123 print exposures of published and unpublished works were
included in all coursepacks produced by York’s printing services. 82,340,348
digital exposures were produced on LMSs during that period.
b)
63.7% of printed volume (3,914,111 exposures)
and 27.2% of digital volume (22,381,560 exposures) were of published works.
c)
77.2% of printed volume and 59.4% of digital
volume were relevant to the Fair Dealing Guidelines counterclaim. The remaining
volume of copying was classified as public domain, open access, creative
commons, or government documents.
d)
For a portion of the volume of copying relevant
for the Fair Dealing Guidelines counterclaim, York had permissions and/or
library licences. For printed volume, 1.4% relevant to the counterclaim was not
covered by one of those permissions or licences. For digital volume, 67.3% were
not covered by those permissions or licences.
e)
For printed volume, all 40,864 exposures (1.4%)
not affected by permissions or licences fell within the Fair Dealing
Guidelines. Thus, between September 1, 2011 and December 31, 2013, there were
no copies of published works that were included in coursepacks produced by York
that exceeded the Guidelines threshold.
f)
For digital volume, 72.6% of the volume not
affected by permissions or licences fell within the Guidelines. Between
September 1, 2011 and December 31, 2013, there were 2,448,859 exposures posed
on LMSs that exceeded the Guidelines. In terms of documents, this translates to
1,591 documents containing excerpts from books posted on LMSs between September
1, 2011 and December 31, 2013 that exceeded the Guidelines. This translates
into approximately 0.01 documents posted on an LMS per FTE student.
g)
The trend analysis suggests that there was a
decline in the overall volume of printed copying by York (34.3%) and an even
steeper decline in the volume of copying relevant to the Fair Dealing
Guidelines counterclaim (58.7%) between 2001 and 2013. The reverse trend was
observed with respect to LMS postings. Between 2011 and 2013, the overall
volume of digital copying increased by 34.4% and the volume of digital copying
relevant to the Guidelines counterclaim increased by 71.1%.
h)
14.0% of the printed volume of copying relevant
to the counterclaim was published in Canada (18.9% for the digital volume).
There does not appear to be a concentration of printed and digital copying
within a small group of publishers.
[123] Wilk was involved in the Coursepack Study, which was a study to
estimate the exposures of printed volumes included in coursepacks by York
during the relevant period. There were significant differences between Gauthier
and Wilk in terms of calculated exposures and in the “sealing
up” of the sampling. Wilk took a different approach to Gauthier,
particularly with respect to the copying done according to “permissions” held by York.
[124] Wilk was also involved in the LMS Study designed to estimate the
volume of digital exposures of published works posted on York’s LMSs during the
relevant period. The critical difference between Wilk’s estimation of copying
and Gauthier’s estimation is attributable to the use of unique user data by
Wilk as opposed to the use of enrolment data by Gauthier. This resulted in a
difference of 13 million copies of materials for Wilk versus 16 million for
Gauthier. There were greater differences between the two experts in respect of
the coursepack analysis.
[125] Wilk’s evidence was seriously undermined during cross-examination.
He made a number of assumptions without support – for example, he did not look
at any underlying documentation to verify licensing status information. This
failure to “dig deeper” affected the accuracy of
his permissions analysis and his digital exposures analysis in the LMS sample.
[126] His study of the List of Publishers (Table 2.10 of his Report) was
also based on unverified assumptions. Likewise, several of his other Tables
were suspect (see, for example, Table 3.7).
[127] As exposed in cross-examination, Wilk’s failure to validate data
undermined significant parts of his evidence and his opinions. In addition, as
pointed out by Gauthier in his expert report and underscored in his oral
testimony, Wilk’s reliance on unique user access was of questionable
reliability.
[128] Overall, Wilk underestimated the results of the copying analysis.
Where his evidence conflicts with that of Gauthier, I favour that of Gauthier.
(2)
A. Scott Davidson
[129] The Defendant also relied on the expert evidence of A. Scott
Davidson, Managing Director of Duff & Phelps. Davidson had experience in
valuations but no real experience in the publishing business. He was qualified
as an expert without objection.
[130] Davidson’s principal role was to review and critique the PwC Report
and to provide some observations, conclusions, and analysis. His Report was
essentially a criticism of PwC, outlining what he saw was wrong with the PwC analysis
but without providing the Court with a helpful analysis of what the Court
should conclude from the evidence. This approach is less helpful to the Court
than the approach taken by PwC and Gauthier.
[131] In summary, his opinion was that:
a)
There is no basis, or there is an inadequate
basis, for the Dobner Report’s conclusions regarding the apparent and expected
impacts of implementing the Guidelines at York and more broadly at Canadian
post-secondary institutions.
b)
From a business and financial perspective, the
supporting analysis presented by PwC is generally insufficient to establish
either or both of the conclusions that:
-
The alleged events have occurred or are likely
to occur; and/or,
-
Implementation of the Guidelines did or will
have a material influence on the alleged events.
c)
The Dobner Report’s conclusions are speculative
as the validity and strength of the conclusions could have been tested but were
not.
d)
There are a number of concerns with Dobner’s
approach in quantifying the alleged loss of licensing income.
e)
There are a number of trends and factors
impacting educational publishing industry:
-
The educational publishing industry has
historically been large and profitable, but revenues and margins are facing
increasing pressure from alternative sources of content.
-
The options available for students to obtain
materials have increased. Students may buy used, rent or borrow textbooks,
purchase electronic versions, or download materials legally and illegally.
Students have reduced their total spending on course materials.
-
The transition to a digital marketplace presents
challenges and opportunities. New participants are interrupting a mature
industry which previously enjoyed high barriers to entry.
-
Guidance on fair dealing in key court decisions
in 2012 led to the development of a series of fair dealing guidelines.
[132] While Davidson criticized Dobner’s qualitative analysis approach, he
was unable to provide a quantitative analysis or even to say that such was
possible. He was even unwilling to opine on whether the educational publishing
sector could survive the full implementation of the Guidelines.
[133] Davidson seemed to dispute that copying is a substitute for the
original works, even though the evidence is overwhelming that it is. This also
led to his conclusion that the Guidelines have not had and will not have a
negative impact on revenues of owners – he indicated that other factors are the
cause of the decline in revenues. However, he appeared to acknowledge that even
by Wilk’s calculations, 27% of the York copying was outside either its licence
or the Guidelines.
[134] Davidson’s lack of familiarity with the background facts was made clear
during cross-examination. This unfamiliarity meant that many of his assumptions
and responses were not forthcoming or clear enough to assist the Court.
[135] The Court recognizes that Davidson had a limited mandate, which negatively
impacted the weight to be given his evidence. However, the Court can place
little reliance on his evidence to the extent that he was attempting to
undermine the Plaintiff’s case.
(3)
Dustin Chodorowicz
[136] The Defendant’s final expert was Chodorowicz, a partner in Nordicity
who works as a strategic, policy, and economic advisor in the “creative” business sector. He had expertise in
quantitative analysis methods and econometric modelling. His expertise and
qualifications were not challenged.
[137] Chodorowicz’s mandate was, like that of Davidson, to review and
comment on the PwC Report. He does not offer a substantial alternative
viewpoint but merely offers criticism of PwC.
[138] To summarize his opinion, he was of the view that:
a)
There is not sufficient empirical support in the
PwC Report to conclude that the Guidelines adopted by York and other
universities have had an impact on the sales of primary works (and thereby the
industry's revenues).
b)
A number of factors will dampen investment by
publishers in the post-secondary educational market, including lower
profitability, more promising alternative markets, digitalization, and
uncertainty. Although a number of factors have resulted in the industry's
decline, PwC has not presented information leading to the conclusion that the
decline is linked to the Guidelines.
c)
There is insufficient empirical support to ground
the conclusion that the Guidelines will accelerate current trends in the sector
toward lower overall sales volume.
d)
The post-secondary educational market is broadly
comparable to other sectors with respect to sale of content in terms of disruption
from digital technology. Accordingly, broader issues should be factored into
any conclusion about the potential causes of alleged negative impacts.
e)
Declines in revenues may not always happen as
predicted. Creators and publishers may find other product categories,
distribution channels, and international markets to sustain or grow their
incomes.
[139] His opinion contained significant speculation as to what different
methods or approaches might inform any analysis, but he did little of that type
of work. While Chodorowicz did not substantially dispute the basis of the PwC
Report, he drew different conclusions from the underlying information.
[140] With respect, Chodorowicz used virtually no material references and
was frequently evasive when challenged. His ultimate conclusion in testimony is
that the Guidelines did not cause economic harm. That conclusion flies in the
face of overwhelming evidence to the contrary.
[141] Chodorowicz admitted that it would be difficult to do a proper
quantitative analysis because of problems with respect to the volume of copies
and the establishing of control groups. These are matters about which Dobner also
expressed concern, which led him to engage in a qualitative analysis.
[142] Significantly, Chodorowicz, having criticized Dobner/PwC and its
approach, conceded that, as a quantitative approach was not feasible, the only
option was a qualitative approach.
[143] I have concluded that Chodorowicz’s admissions do more to assist the
Plaintiff than the Defendant. Any suggestion that the Guidelines have not and
will not have negative impacts on copyright owners or publishers is not
tenable. There is no question that the evidence has established that on the
matter of impacts in the fairness analysis, the Plaintiff has made out its thesis
completely.
E.
Survey Evidence
[144] Access put in evidence of three surveys. The introduction of this
evidence was challenged by York and the Court dismissed this objection. Survey
evidence is becoming increasingly prevalent in certain cases, and the
reliability of surveys is improving but is never guaranteed. The prospect of
the alternative to surveys – parading hundreds or even thousands of individuals
before the Court to give their particular evidence – runs counter to any notion
of effective and efficient modern trials.
Having
recognized the necessity of such evidence, courts must be cautious in accepting
the conclusions of surveys. There are frailties inherent in surveys generally
which may be more marked in respect of any particular survey.
[145] As indicated earlier, the surveys provided context and directional
guidance, but the absolute numbers were not particularly important. Many of the
conclusions of the surveys accord with common sense – for example, losing
royalties is not beneficial to the recipients of those royalties, and losing
royalties in the arts/creative community may have serious negative impacts on
that community.
[146] The first survey, by Gauthier’s firm of Access creator affiliates,
dealt with post-secondary institutions generally and dealt in hypothetical
impacts. The survey respondents come from varying perspectives – some were
largely dependent on royalties, others not so much. Approximately 50% of
respondents believed that the cessation of Access payments would have no impact
on their creative output while about 40% believed there would be a reduction.
[147] From the other evidence, from professors who write as part of their
academic interests and duties, the Court can only conclude that some large
percentage but not necessarily the majority of creators will be adversely
affected by the Guidelines, even if they are properly enforced. The amount is
uncertain but not de minimis.
[148] The second survey, of members of the Association of Canadian
Publishers in 2014, also dealt with hypothetical impacts and was not directed
specifically at York. There was some confusion or contradiction with respect to
the roles played by Dobner and Gauthier in the design and interpretation of the
survey data, and Dobner had no qualifications in survey design.
[149] This survey was of limited assistance to the Court. The major
conclusions were axiomatic: it was poor business not to receive royalties and
the negative impact depended on the nature of each publisher’s business.
[150] The third survey, of Canadian Authors on Educational Copying, was
introduced by a fact witness, John Degen. The survey’s results were that the
majority of authors who responded – 25% of those canvassed – were of the
opinion that the AUCC guidelines were unfair. This is hardly a surprising
result considering that many authors might experience a decline in revenues if
the AUCC guidelines were adopted by all universities in a manner approximating
York’s adoption.
[151] Some of these matters are touched upon in the following analysis in
respect of Fair Dealing.
VIII. Key Events – Main Action
[152] The events at Keele seemed to have the same impact in the context of
the Access-York relationship as the shot fired at Sarajevo in 1914.
A.
Keele Copy Centre
[153] York had had licensing agreements with Access from 1994 to the end
of 2010. The licences typically provided for the payment of license fees a) at
a per page fee for pages copied and sold to students (e.g. coursepacks) and b) at
a per FTE fee to cover any other copying that was not for a coursepack. By 2010,
the fees were $0.10 per page and $3.38 per FTE.
[154] As part of Access’s obligation to enforce copyrights and collect
fees, Access periodically made “sweeps” of copy
shops believed to be copying without paying fees.
[155] Keele had been caught up in one of these sweeps in 2008. In 2010, Access
obtained a consent judgment against Keele for unauthorized copying.
[156] Keele is a digital printing and photocopying facility located in a
strip mall directly across from the main entrance to York on Keele Street.
[157] In January 2012, Access carried out enforcement activities against
Keele, including unannounced inspections of its premises. As disclosed in the
trial, Access counsel Simon Hitchens was involved in these enforcement
activities. From a review of Keele’s computer records and e-mails, he
established that 10-15 professors were involved in having Keele perform
unauthorized (and unpaid) copying of coursepacks and loose material. Five of
those professors gave evidence at the trial [the Five Professors].
[158] York contended that it was unaware of this unauthorized copying at
Keele by a number of York professors.
[159] In any event, York’s response was to compile a list of copy shops
which were licensed directly by Access and to send a memorandum which listed
these authorized copy shops to faculty and staff.
[160] York did not take any disciplinary or corrective action against the
professors in question and in this action took the position that York was not
responsible for the actions of these employees, despite acknowledging that
their actions were contrary to York policy.
[161] The Five Professors appeared at the trial to attempt to explain what
they had done. Two professors assumed that copyright had somehow been taken
care of, without taking any steps to confirm this one way or the other. One of
the five assumed that Keele had obtained the necessary licences and the
remaining two professors assumed (Court underlining) that the copying
was covered under fair dealing.
The
end result, however, is that the appropriate fees were not paid.
B.
Interim Tariff Events
[162] In respect of the license agreements referred to immediately above,
these agreements only covered paper copies (not digital copies) of works in Access’s
repertoire and only covered certain amounts of the works. Moreover, the
agreements did not cover copying of excerpts that were available for purchase
as standalone works.
[163] In March 2010, Access filed a proposed tariff with the Board for
post-secondary educational institutions covering the years 2011-2013 [the
Proposed Tariff]. It proposed a flat tariff rate of $45 per FTE per year.
The
Proposed Tariff was published in the Canada Gazette.
[164] The Proposed Tariff was introduced against the background of the
expiration of the last agreement between York and Access set for December 31,
2010.
[165] It was also introduced against the background of the failed
negotiation between Access and the AUCC to establish a model license agreement.
[166] York was well aware of the Proposed Tariff and the looming expiry of
its license agreement. The Proposed Tariff posed a problem for York because York
had previously passed on the per page copying charge to students but had
absorbed the FTE charge (which was $3.38 in 2010). York was faced with the question
of how to handle the elimination of the per page charge and the increase from
$3.38 per FTE to $45 per FTE. It was also concerned with the increased record
keeping and reporting obligations imposed by the Proposed Tariff, especially
with respect to digital copies.
[167] As matters developed, it chose to ignore the FTE charge, ignore any
reporting or record keeping obligations, and develop its own Fair Dealing
Guidelines to shield it from the consequences of copyright claims.
[168] On December 23, 2010, the Board granted Access’s application for an
interim decision and set the terms of the Interim Tariff. The Interim Tariff
incorporated the terms of the then existing AUCC model license agreement to the
extent possible.
[169] On that same day, York was formally informed of the terms of the
Interim Tariff.
[170] York then operated under the Interim Tariff from that point until
August 31, 2011 – a period of eight months, coinciding with the end of one
academic year and the beginning of another.
[171] However, on July 4, 2011, York provided Access with formal notice of
its unilateral decision to “opt out” of the
Interim Tariff as of August 31, 2011. York took the position that the Interim
Tariff was a voluntary matter as was the payment of copyright fees.
[172] Despite only giving notice on July 4, 2011, Lynch admitted that York
had been preparing since 2010 to opt out of any Interim Tariff authorized by
the Board.
As
of September 1, 2011, York was operating outside the Interim Tariff and under
its Fair Dealing Guidelines.
IX.
The Fair Dealing Guidelines Story/Key Events in
the Counterclaim
[173] Even as York was subject to its agreements with Access, it was
planning to avoid future agreements and was examining the use of fair dealing
guidelines. On December 22, 2010, it implemented its own Guidelines modelled on
those developed by the AUCC.
[174] Just before the expiry of the York-Access agreement, York
administration advised its faculty and staff that upon such expiry, copies
could still be made if there was permission or a licence from the copyright
owner or if copying was done within its definition of “fair
dealing”.
[175] By way of background, it was the AUCC who first developed a fair
dealing policy in 2004 following the decision in CCH Canadian Ltd v Law
Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339 [CCH]. That
policy was revised from time to time but the most recent iteration, relevant to
this litigation, was in 2012.
[176] The 2012 revision to the AUCC policy resulted from the Supreme Court
of Canada decision in Alberta (Education) v Canadian Copyright Licensing Agency
(Access Copyright), 2012 SCC 37, [2012] 2 S.C.R. 345 [Alberta (Education)],
and the passage of the Copyright Modernization Act, SC 2012, c 20.
[177] AUCC engaged external legal counsel to develop the revised policy
and instructed counsel to consult the university community (meaning university
libraries, vice-presidents, and academics).
That
consultation did not engage the copyright owners (writers, publishers, or Access).
No explanation was ever given for this one-sided consultation process.
[178] The new AUCC policy was approved in October 2012, after which York
revised its own Guidelines. There was little substantive difference between the
revised AUCC policy and York’s Guidelines other than incorporating certain
exceptions – education, satire, and parody – and providing that each student
enrolled in a class or a course may be provided with a single copy of a handout
either through a coursepack, or a posting on an LMS, or a Moodle-like posting.
[179] The York Guidelines as revised in 2012 remain in effect today and
are at issue in this litigation.
A.
York - Publication/Copy Distribution
[180] York’s libraries (York University Libraries and Osgoode Hall Law
Library) play a critical role in the access to and dissention of educational
materials, including hard copy collections (printed monographs and periodicals)
as well as electronic collections. Osgoode Hall Law Library is not part of this
litigation.
[181] Electronic resources in the past few years have been increasingly
demanded by professors and students. York has been acquiring various electronic
resources in increasing numbers.
However,
print collections remain an important part of York’s libraries.
[182] Access to electronic resources by York is generally by way of
licences from publishers and subscriptions to databases. The licences and
subscriptions may be indirectly acquired through library consortia or directly
acquired by York. These licences and subscriptions permit certain uses to be
made of the content, which is in contrast to Access’s licence or its Interim
Tariff which simply provides for the ability to copy.
[183] York provided evidence of its use of consortia, particularly the
Canadian Research Knowledge Network and the Ontario Council of University
Libraries. That evidence included the various safeguards for electronic
resources. There is no dispute between the parties on the use of consortia or
of electronic resources. It provided the Court with useful background on the
extent of the dealings and some of the difficulties posed in this case in
marshalling the vast amount of material which is subject to copyright.
It
did not, however, allay concerns about whether the dealing was fair.
[184] York also led evidence on York’s governance structures. An area of
concern was that in some fashion the principle of “academic
freedom” would be imperiled if copyright laws were enforced.
[185] As indicated earlier, several professors gave evidence as to the ways
that they dealt with course materials but expressed a concern that ensuring
copyright law compliance would infringe their academic freedom, whereas payment
of other university obligations (water and electricity, taxes, etc.) would not.
[186] None of these witnesses advanced any feasible method for ensuring
copyright law compliance, thereby effectively reading “fair
dealing” out of s 29 and relying solely on the fact that the
materials were used for education.
[187] The evidence of the professors underscored the dual nature of the academic
community’s relationship with copyright. Academics are users of copyrighted
material, but they are also creators of copyrighted material.
There
is a mutual dependence between libraries/professors and the copyright regime
which may suggest that a better system of protection and more certain criteria (such
as in a licence or in a tariff) would assist all parties interested in
education and access to educational materials.
X.
Legal Conclusions
A.
Main Action – Was the Interim Tariff enforceable
against York?
(1)
Preliminary
[188] Access alleges that it is entitled to recover royalties from York
pursuant to the Interim Tariff. Its position is encapsulated in paragraph 23 of
its closing submissions:
Applying the principles of statutory
interpretation and considering both the legislative history and evolution of section
68.2 of the Act, Access Copyright submits that an approved tariff is
enforceable against all users, such as York, who: 1) reproduce copyright-protected
works in Access Copyright’s repertoire; 2) who have not otherwise obtained
permission for that reproduction; and 3) which reproductions are not covered by
a statutory exception (e.g. fair dealing).
[189] York’s position is that the Interim Tariff is not an approved tariff
because it did not result from a tariff certification process, particularly
having regard to ss 70.13 to 70.15 of the Act. It is also not an approved
tariff because the Interim Tariff was not published in the Canada Gazette. As
the Interim Tariff is not an approved tariff, it cannot be enforced under s
68.2 and is only binding on a user who consents to it – which, effective
September 1, 2011, York did not.
[190] The word “tariff” is not defined in
the Act. However, “tariffs” are frequently
referred to in connection with fees or charges which must be paid – examples
exist in respect of fields as diverse as energy and harbour charges.
[191] As seen in Alberta Utilities Commission legislation and expressed in
ENMAX Power Corp (Re), [2004] AEUBD No 58 (QL), decided by the then-Alberta
Energy and Utilities Board, tariffs are approved by a board and involve binding
charges. Likewise, in the context of the Canadian Radio-television and
Telecommunications Commission [CRTC], a tariff includes terms and conditions
and charges.
[192] This notion of a tariff as binding runs through not only boards such
as the National Energy Board, CRTC, Nova Scotia Utility and Review Board, and Ontario
Energy Board, but also includes tariffs of fees fixed by the executive as seen
in Algoma Central Corporation v Canada, 2009 FC 1287, 358 FTR 236, where
a Minister could set the tariff of fees.
[193] Section 2 of the Interpretation Act, RSC 1985, c I-21, refers
to tariffs in respect of “fees or costs” within
the definition of “regulation”. This connotes at
least an element of compulsion or requirement to pay.
(2)
Scheme of the Act
[194]
In April 1997, s 68.2(1) of the Act came into
effect, providing for the ability of collective societies, such as Access, to
collect royalties established in an approved tariff:
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68.2 (1) Without prejudice to any
other remedies available to it, a collective society may, for the period
specified in its approved tariff, collect the royalties specified in the
tariff and, in default of their payment, recover them in a court of competent
jurisdiction.
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68.2 (1) La société de gestion peut, pour la période mentionnée au tarif
homologué, percevoir les redevances qui y figurent et, indépendamment de tout
autre recours, le cas échéant, en poursuivre le recouvrement en justice.
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[195]
Considering the scheme of the Act, tariffs and
the enforcement of tariffs (both final and interim) are an integral part of the
legislative scheme created by Parliament for the collective administration of
copyright.
Parliament
recognized the difficulties copyright owners might face in enforcing their
rights individually against those who copied copyright protected works.
[196] The Act provided mechanisms for the protection of those rights,
particularly through the unified structures of a collective society as had previously
been done.
[197] Under earlier provisions of the 1970 Act (ss 48-50), PRSs filed
lists of works for which they had the authority to issue licences. Proposed “statements” of fees, charges, and royalties were
filed for the issuance of licences. The process of approval of these statements
went to the Copyright Appeal Board, which dealt with any objections and which approved
(with or without amendments) or rejected the statements.
The
approved statement set out the fees, royalties, and charges that the performing
rights societies were legally entitled to collect for the issuance or grant of
licences to users in respect of the works in the repertoire of the PRSs.
[198] The PRSs were entitled to sue and collect the fees approved by the Copyright
Appeal Board in respect of the issuance or grant by it of licences for the performance
of any or all of the works. Despite the broad wording, the enforcement action
was limited to situations where a user had entered into a binding
agreement/licence. The PRSs were limited to an action for copyright
infringement (see Performing Rights Organization of Canada Ltd v Lion D’Or
(1981) Ltée et al (1988), 16 FTR 104, 17 CPR (3d) 542 (TD)).
[199] In recognition of the limitation on enforcement, Parliament, in 1989,
amended the Act such that after Board approval, a PRS had the right to collect
royalties specified in the statement or “in default of
their payment, recover them in a court of competent jurisdiction”. Enforcement
was no longer tied to whether a user had entered into a license agreement.
[200] These 1989 legislative changes also permitted new “licensing bodies” to collectively administer
copyrights, including reproduction rights. Among the new licensing bodies
flowing from this amendment was Access.
[201] The Board’s jurisdiction in respect of the new licensing bodies was
to fix royalties to be paid by a user (to the licensing body) as well as other
terms and conditions.
[202] As a result, and unlike the rights of a PRS, the new licensing
bodies were not accorded the right to file with the Copyright Appeal Board
proposed statements and had no enforcement remedies equivalent to those of PRSs.
[203] However, necessitated in part by the problems of enforcement of
copyright against users, the rights of the collectives were expanded in the
1997 revisions: firstly, to file proposed tariffs with the Board as an
alternative to entering into agreements with users and, secondly, in respect of
a Board approved tariff, the collectives were afforded the right to collect
royalties specified in the tariff and, in case of default in payment, the
collective could recover the royalties in the Federal Court. In this regard,
the rights of these new licensing bodies like Access paralleled the rights of
such organizations as the Society of Composers, Authors and Music Publishers of
Canada (SOCAN).
[204] I concur with Access’s view that the legislative history, and particularly
the development of the modern enforcement provisions, confirm the legislative
intent to provide collectives with effective enforcement mechanisms against
users who are not subject to an agreement and who reproduce, without authority
from owners or without the benefit of an exception (e.g. fair dealing),
copyright protected works covered by the collectives, such as those works in Access’s
repertoire.
(3)
Statutory Interpretation
[205]
The modern approach to statutory interpretation,
as laid out in numerous cases including Rizzo & Rizzo Shoes Ltd (Re),
[1998] 1 S.C.R. 27 at para 21, 154 DLR (4th) 193, instructs that the words of
legislation are to be examined as follows:
… Today there is only one principle or
approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament. …
[206] The notion of compulsion, as opposed to a voluntary payment, is
consistent with the legislative history of the amendments in 1997. Those
amendments dealt in part with the enforceability of rights to be exercised by
collectives.
[207] The Interpretation Act defines a regulation as including a
tariff of costs or fees. As such, a tariff is subordinate legislation:
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regulation includes an order,
regulation, rule, rule of court, form, tariff of costs or fees,
letters patent, commission, warrant, proclamation, by-law, resolution or
other instrument issued, made or established
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règlement Règlement proprement dit, décret, ordonnance, proclamation,
arrêté, règle judiciaire ou autre, règlement administratif, formulaire, tarif
de droits, de frais ou d’honoraires, lettres patentes, commission,
mandat, résolution ou autre acte pris :
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(a) in the execution of a power conferred by or under the authority
of an Act, or
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a) soit dans l’exercice d’un pouvoir conféré
sous le régime d’une loi fédérale;
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(b) by or under the authority of the
Governor in Council; (règlement)
(Court’s underlining)
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b) soit
par le gouverneur en conseil ou sous son autorité. (regulation)
(La Cour souligne)
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[208] Courts are also to interpret legislation in accordance with the Interpretation
Act, particularly s 12:
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12 Every enactment is deemed remedial, and shall be given such fair,
large and liberal construction and interpretation as best ensures the
attainment of its objects.
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12 Tout texte est censé apporter une
solution de droit et s’interprète de la manière la plus équitable et la plus
large qui soit compatible avec la réalisation de son objet.
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[209] While the word “tariff” is not
defined in the Act, it is a word found in other contexts to indicate an imposed
charge, as discussed earlier.
[210] The use of the term “tariff” is
consistent with the provisions of the Act directed at ensuring that copyright
owners are paid for the reproduction of their works and is also consistent with
the role of collectives, such as Access, in collecting the amounts which are
due or become due. Section 68.2(1) indicates the mandatory nature of payment
for copying.
[211] The compulsory nature of a tariff is also evidenced by the nature of
the tariff setting process. Under s 70.12, either a tariff is filed or the
relevant parties enter into an agreement. The agreement option is voluntary and
is in contrast to the mandatory nature of a tariff.
[212] Further, under s 70, where there is public notification of the
tariff process, the provision for Board approval and certification of a tariff
is also consistent with the mandatory nature of the result of the Board’s
certification. There is no suggestion of “opting out”
in these provisions.
[213] As indicated earlier, York’s reliance on the Supreme Court’s
decision in SODRAC is misplaced. The Supreme Court of Canada’s decision
is distinguishable from the provisions (ss 70.1-70.191 of the Act) at
issue in this case.
[214] The Supreme Court of Canada in SODRAC was dealing with a
different regime: licensing royalties and terms and conditions under s 70.2 of
the Act. The regime in the present case is tariff setting. Most importantly,
under the licensing regime, s 70.2 read in conjunction with s 70.4 was
permissive such that a user could avail itself of the terms and
conditions set by the Board. The language of s 70.4 allowed a
user/licensee to opt out of the licence terms:
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70.2 (1) Where a collective society
and any person not otherwise authorized to do an act mentioned in section 3,
15, 18 or 21, as the case may be, in respect of the works, sound recordings
or communication signals included in the collective society’s repertoire are
unable to agree on the royalties to be paid for the right to do the act or on
their related terms and conditions, either of them or a representative of
either may, after giving notice to the other, apply to the Board to fix the
royalties and their related terms and conditions.
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70.2 (1) À défaut d’une entente sur les redevances, ou les modalités
afférentes, relatives à une licence autorisant l’intéressé à accomplir tel
des actes mentionnés aux articles 3, 15, 18 ou 21, selon le cas, la société
de gestion ou l’intéressé, ou leurs représentants, peuvent, après en avoir
avisé l’autre partie, demander à la Commission de fixer ces redevances ou
modalités.
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(2) The
Board may fix the royalties and their related terms and conditions in respect
of a licence during such period of not less than one year as the Board may
specify and, as soon as practicable after rendering its decision, the Board
shall send a copy thereof, together with the reasons therefor, to the
collective society and the person concerned or that person’s representative.
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(2) La Commission peut, selon les modalités,
mais pour une période minimale d’un an, qu’elle arrête, fixer les redevances
et les modalités afférentes relatives à la licence. Dès que possible après la
fixation, elle en communique un double, accompagné des motifs de sa décision,
à la société de gestion et à l’intéressé, ou au représentant de celui-ci.
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…
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[…]
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70.4 Where any royalties are fixed for
a period pursuant to subsection 70.2(2), the person concerned may, during the
period, subject to the related terms and conditions fixed by the Board and to
the terms and conditions set out in the scheme and on paying or offering to
pay the royalties, do the act with respect to which the royalties and their
related terms and conditions are fixed and the collective society may, without
prejudice to any other remedies available to it, collect the royalties or, in
default of their payment, recover them in a court of competent jurisdiction.
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70.4
L’intéressé peut, pour la période arrêtée par la Commission, accomplir les
actes à l’égard desquels des redevances ont été fixées, moyennant paiement ou
offre de paiement de ces redevances et conformément aux modalités afférentes
fixées par la Commission et à celles établies par la société de gestion au
titre de son système d’octroi de licences. La société de gestion peut, pour
la même période, percevoir les redevances ainsi fixées et, indépendamment de
tout autre recours, en poursuivre le recouvrement en justice.
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[215] That language of “opting out” does
not appear in ss 70.1-70.191 (see Schedule B). The fact that it does not
strongly suggests that tariffs are mandatory, particularly when contrasted with
the permissive language of the licensing regime.
[216] The Supreme Court of Canada makes no comment on the tariff regime,
the Board’s tariff fixing jurisdiction, or any other aspect of the approval and
enforcement of tariffs.
[217] Not only is the SODRAC decision not on point, it teaches in a
different direction than that advocated by York. The language of the two sets
of provisions (ss 70.1-70.191 versus ss 70.2-70.4) evidences a clear
legislative intent to separate tariff fixing from arbitrary licence terms. One
is compulsory, and the other is permissive.
[218] The Court has concluded that an approved tariff is a form of
subordinate legislation which is mandatory and binding on any person to whom it
pertains. There is no opting out.
[219] The copying of works in Access’s repertoire, the scope of that
repertoire, and the accounting and payment by York for such copying by its
employees is deferred to Phase II of this action (the Damages Phase).
[220] If York did not copy any works in Access’s repertoire, if it obtained
proper permission to copy those works, or if the copying was exempt by law –
the fair dealing defence and counterclaim – then the tariff would not be
applicable. Absent these conditions, the tariff is mandatory.
(4)
Status of Interim Tariff
[221] With the license agreements between York and Access coming to an end
and no prospect of an extension or renewed agreement, Access filed the Proposed
Tariff on March 30, 2010.
In
October 2010, Access filed an application under s 66.5 of the Act requesting an
interim decision for the interim payment of royalties for copying at all post-secondary
educational institutions for the period January 1, 2011 to the date the Board
certified the tariff.
[222] Following strong opposition to the Proposed Tariff, the Board
decided that the interim decision would be in the form of an interim tariff.
The Interim Tariff was issued on December 23, 2010 and was effective
January 1, 2011.
[223] The Board ordered Access to post the Board’s decision and the terms
of the Interim Tariff on Access’s website and to take all reasonable steps to
alert the post-secondary educational community of the Interim Tariff.
The
Interim Tariff was not published in the Canada Gazette.
[224] As indicated in the Board’s decision, the Interim Tariff was issued
to address the vacuum that would exist if there was no agreement between users
and owners.
[225] As to the legal status of the Interim Tariff, the Board found that enforcement
of an approved tariff under s 70.17 of the Act was engaged whether or not the
tariff was interim or final.
No
judicial review was taken of the Board’s decision.
[226] York now says that the Interim Tariff is not enforceable. It
contends that the Interim Tariff is not an approved tariff. However, York was
in a position to apply to judicially review the Board’s decision and had
sufficient knowledge and the legal status to do so – it did not. It waited
until these proceedings to question the Board’s decision. In fact, it complied
with the Interim Tariff until it implemented the Guidelines. It appears that
York’s position was that it could opt out of the Interim Tariff at any point it
chose.
[227] The Supreme Court of Canada has repeatedly condemned the collateral
attack of administrative decisions – which is what is suggested by York’s
defence.
[228] York’s position not only challenges the compulsory nature of the
Interim Tariff, its argument about posting the Interim Tariff is also a direct
challenge to the Board’s decision, inherent in its posting instructions, that
posting in the Canada Gazette was not “practicable”.
[229] While it is not necessary to decide this matter on the collateral
attack issue, York’s position smacks of collateral attack. Collateral attack in
the context of administrative law has been considered where “a second proceeding involves the non-compliance with an
administrative order that has not been previously challenged through the
administrative appeal process but is challenged in the second proceeding”
(Donald J Lange, The Doctrine of Res Judicata in Canada, 4th
ed (Markham, ON: LexisNexis Canada, 2015) at 465).
[230] The judicial policy rationale for the principle was well described
in Consolidated Maybrun Mines Ltd et al v The Queen, [1998] 1 S.C.R. 706,
158 DLR (4th) 193:
22 … Although administrative orders
like the one in the case at bar can be subject to judicial review by the
superior courts, the problem before us presupposes, inter alia, that the
affected party did not apply for review. …
…
26 Finally, in resolving the problem
of collateral attacks on administrative orders, it is necessary to bear in mind
the role and importance of administrative structures in the organization of the
various sectors of activity characteristic of contemporary society. The
growing number of regulatory mechanisms and the corresponding administrative
structures are a reflection of the state’s will to intervene in spheres of
activity, such as economics, communications media, health technology or the
environment, whose growing complexity requires constantly evolving expertise
and normative instruments permitting a pointed and rapid intervention
consistent with the specific circumstances of the situation. …
[231] Judicial review is an important process in this case. The scope and
enforceability of the Interim Tariff are matters squarely within the Board’s
jurisdiction. The resolution of these issues would engage the Board’s expertise
– something which Parliament clearly intended as a matter of substance (see SODRAC).
These issues are ones for which the Board is entitled to deference by this
Court.
[232] York argues that the Interim Tariff is not an approved tariff because
it was not published in the Canada Gazette as required by s 68(4):
|
68 (4) The Board shall
(a) publish the approved tariffs in the Canada Gazette as soon
as practicable; and
(b) send a copy of each approved tariff, together with the reasons
for the Board’s decision, to each collective society that filed a proposed
tariff and to any person who filed an objection.
|
68 (4)
Elle publie dès que possible dans la Gazette du Canada les tarifs
homologués; elle en envoie copie, accompagnée des motifs de sa décision, à
chaque société de gestion ayant déposé un projet de tarif et aux opposants.
|
[233] It was the Board which had the obligation, such as it was, to
publish in the Canada Gazette. However, given the circumstances and the urgency
(as expressed in the Board’s decision) to prevent a vacuum, the Board
apparently decided that publication was not practicable – a matter which is within
its discretion to decide.
[234] The purpose of publication in the Canada Gazette is to give notice
to affected parties. In this case, York had actual knowledge of the Interim
Tariff.
York’s
position, if accepted, would be a triumph of form over substance. That argument
is unsustainable.
[235] Therefore, the Court dismisses York’s arguments that the Interim
Tariff is neither mandatory nor properly established.
[236] York’s last major point in its challenge to the operation of the
Interim Tariff is that there was no breach of the Interim Tariff and, if there
was, York is not responsible for the breaches of the Interim Tariff.
[237] Quite apart from the significant copying done under the auspices of
fair dealing (and the absence of payment for that copying), there is the
evidence of at least five full-time instructors at York (that is, the Five
Professors) having had copies made of copyright protected materials by the
unlicensed copy shop Keele – mostly complete book chapters for coursepacks.
[238] Paragraph 7 of Schedule C of the Interim Tariff prohibited York’s
instructors from assembling into coursepacks copies of published works covered under
authority of s 2(a) of the Interim Tariff.
[239] There is no doubt that the actions of the Five Professors, in
conjunction with Keele, were contrary to the Interim Tariff. Further, the
sampling exercise done for the purposes of this litigation established that
multiple sets of coursepacks were printed without the permission of the owner.
This type of printing went unreported to Access and unpaid, despite the
requirements of the Interim Tariff.
[240] The Five Professors were direct participants in the infringement
even though some of them assumed that the copying was in accordance with
copyright obligations. Keele was the agent for these professors, who in turn
were employees of York. The role of the professors was more than merely
providing authorization to Keele – the actions of copying were theirs, although
they were carried out by their agent.
[241] The unauthorized copying triggered obligations under the Interim
Tariff. Those obligations were the obligations of York, which is legally
responsible for that copying.
[242] There is no issue that the instructors were employees of York who
were acting within the scope of their employment and for the benefit of York.
The selection and reproduction of course materials were central activities of
York instructors. The actions were not performed for the sole benefit of the
instructors independent of their teaching responsibilities.
[243] While York may not have specifically authorized the offending
copying, those acts were so closely connected to the professors’ authorized
employment activities as to render York vicariously liable.
[244] It is instructive that, despite York’s acceptance that the Keele
copying was outside of the Guidelines, it produced no evidence of any
disciplinary actions taken against the professors, nor did it take any
significant or effective remedial action.
[245] York’s approach to these copyright infringing actions is consistent
with its wilfully blind approach to ensuring compliance with copyright
obligations, whether under the Interim Tariff or under the Fair Dealing
Guidelines.
(5)
Conclusion – Main Action
[246] The Plaintiff is entitled to the declaration of entitlement to and
payment of royalties as pleaded and the ancillary relief set forth in this
Judgment, including injunctive relief (where needed), costs, and pre- and post-judgment
interest.
[247] The Court retains jurisdiction to deal with the calculation of
amounts owing and other matters as contemplated in Phase II, upon request of
the Plaintiff.
[248] The Defendant has pleaded the exception of fair dealing in respect
of education, as is more fully discussed in the next section of these Reasons.
B.
Counterclaim
(1)
General
[249] Both parties emphasize the consideration of the purpose of copyright
and its exceptions, particularly fair dealing. The Supreme Court of Canada has
described copyright law as “a balance between promoting
the public interest in the encouragement and dissemination of works in the arts
and intellect and obtaining a just reward for the creator” (Théberge
v Galerie d’Art du Petit Champlain inc, 2002 SCR 34 at para 30, [2002] 2
SCR 336 [Théberge]).
[250] The exceptions to copyright infringement enacted by Parliament serve
to counterbalance the exclusive rights of copyright owners. One of the most
important exceptions to infringement is “fair dealing”
as set forth in ss 29, 29.1, and 29.2 of the Act.
[251] Following the Théberge decision, the Supreme Court of Canada
rendered the decision in CCH. As the Supreme Court of Canada made clear,
“fair dealing” is a positive user right, not
merely a defence to infringement. However, the burden of establishing fair
dealing rests with the party asserting the right.
[252] CCH provided guidance to courts
considering fair dealing in three areas:
•
The analysis is a two-step process: first, the
authorized purpose (in this case education) must be established and second, the
dealing must be fair;
•
“Fair” is not defined and is a question of fact depending on the circumstances
of each case; and,
•
The fairness analysis engages six non-exhaustive
factors:
a)
purpose of the dealing,
b)
the character of the dealing,
c)
the amount of the dealing (amount of copying),
d)
alternatives to the dealing,
e)
the nature of the work, and
f)
the effect of the dealing on the work.
The first five
features must be established by York. To the extent Access claims a negative
effect of the dealing, the burden shifts to it to establish that factor.
[253] Through the pentalogy of cases, particularly Society of
Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC
36, [2012] 2 S.C.R. 326 [SOCAN], and Alberta (Education), the
Supreme Court of Canada provided further guidance and underscored the
importance of the rights of content users. However, importance does not equate
with exclusivity or dominance. The analysis/fairness assessment requires a
balancing of interests.
[254] The jurisprudence permits the fairness assessment to be done on the
basis of individual dealing as well as on the basis of policies and/or
practices (CCH at para 63).
[255] As was also made clear in CCH, the fairness assessment looks
at the text of the policies, the rationale for the policies, and the practical
or real dealing by the users of the owners’ works. Both the Guidelines
themselves and the practices under the Guidelines must be fair.
[256] The fairness assessment is only engaged if the Court is satisfied that
the dealing was for an “allowable purpose” under
s 29 (i.e., research, private study, education, parody, or satire). It is a low
threshold to meet and there is no real issue that York has established that the
dealing (copying) was for the allowable purpose of education. Having
established an allowable purpose, the Court must turn to the second step in the
analysis, which does not incorporate considerations of “education”
as being “fair” or of education being part of
the fairness factor assessment.
[257] It is the second stage of the analysis – the fairness of the dealing
– on which there is debate and for which many copies were made, as indicated by
the size of the record.
[258] York seeks a determination of whether copying within the Guidelines
constitutes fair dealing.
[259] York puts great reliance on the CCH decision. It sees the
instant case as being parallel with CCH and the Great Library’s Access
Law Policy.
[260] Other than the legal principles annunciated in CCH, that
decision is more of a burden than a benefit to York. One important distinction
is that the copying done at the Great Library was for others, not for the
Library itself. In York’s situation, the copying and the Guidelines serve
York’s interests and the interests of its faculty and students. There is an
objectivity in CCH which is absent in York’s case.
[261] Of even greater significance is that in CCH, the copying at
issue was that of a single copy of a reported decision, case summary, statute,
regulation, or limited selection of text from a treatise. It was not the mass
copying of portions of books, texts, articles, entire artistic work, or portions
of collections, nor was it the multiple copying of those materials into
coursepacks or digital formats.
[262] Furthermore, the manner in which the Access Law Policy was implemented
and practised was markedly different from the York Guidelines. These
differences included:
•
Copying at a single location under the
supervision and control of research librarians in the Great Library contrasted
with no effective supervision, control, or other method of “gatekeeping” at York;
•
A policy strictly applied and enforced by
librarians versus virtually no enforcement of the Guidelines by anyone in
authority at York;
•
Single copies made versus multiple copies;
•
A large amount of ad hoc or situational
copying for users at the Great Library contrasted with the mass systemic and
systematic copying at York; and,
•
An absence of negative impacts on publishers in CCH
as contrasted with the negative impacts on creators and publishers caused or at
least significantly contributed to by York.
[263] Those positive features at the Great Library pointed to the fairness
of its policy. By contrast, the absence of those features in the York situation
points to the unfairness of its Guidelines.
(2)
The Fairness Factors
(a)
The Purpose of the Dealing
[264]
There is a certain degree of overlap in the case
law between the purpose at stage one (“allowable
purpose”) and the purpose of the dealing as one of the stage two factors.
However, the stage two purpose consideration examines matters from the users’ perspective.
In this case, there are two users – the university which is assembling
material, copying, and distributing the material as the publisher, and the
student who is the end user of the material.
[265] In CCH, the Court approached this factor from the perspective
of the Great Library’s policy and the safeguards for ensuring that the copying
was done for research purposes. Anyone requesting copies had to identify the
purpose of copying and any concerns about the purpose were referred to the Reference
Librarian. In SOCAN, the Court considered the safeguards in place to
ensure copying was done for research purposes.
[266] Safeguards were virtually non-existent in the York system. Neither
the Copyright Officer nor the librarians (nor anyone else, for that matter)
played any role in ensuring compliance with the Guidelines. The notice of
copyright obligations and the acknowledgement of copyright policies by faculty have
proven not to be sufficient to ensure compliance. The absence of safeguards
tends towards unfairness.
[267] However, there is no dispute that the copying by York was done for
educational purposes generally. The conflating of the purpose considerations of
stage one and stage two is problematic.
[268] The Board has established a practice of referring to the purpose
part of the stage two analysis as the “goal of the
dealing” – in this case the goal of the Guidelines – to avoid the
problem of conflation:
259 Some confusion may have arisen from
the fact that the English text of the CCH decision refers to two different
parts of the fair-dealing test as the “purpose” of the dealing: the purpose
considered in the first step of the test, and the purpose factor considered in
the second step of the test. This nomenclature appears to have led Parties to
make arguments that are applicable to the first step when discussing the second
step, and vice-versa. For this reason, inspired by the phrase “le but de
l'utilisation” used in paragraph 54 of the French version of the CCH
decision, we find it preferable to use the expression “goal of the dealing”
when referring to the first factor of the second step in English. [citations
omitted]
…
264 The evaluation of [“the goal of the
dealing”] involves considering the fairness of the goal for which the permitted
(under the first step) activity (e.g., research, private study) took place. In CCH,
this involved examining the fairness of research for the goal of providing
legal advice in a commercial context. In Bell, it was the fairness of
research for the goal of deciding whether to purchase musical works online. The
fact that research or another permitted activity are undertaken for a further
or additional goal does not, in itself, make this factor tend towards
unfairness.
(Reproduction of Literary Works,
Re, 2015 CarswellNat 1792 (WL Can) at paras 259, 264 (Copyright Board); see
also Reproduction of Literary Works, Re, 2016 CarswellNat 436 (WL
Can) at para 246 (Copyright Board)).
[269] The Board’s method of referring to this stage of the analysis as the
“goal of the dealing” instead of the “purpose of the dealing” to avoid conflation between
stage one and part one of stage two of the test is a useful reference point.
Even in the case at bar, York tended to return to the part one purpose
throughout its argument on part two of the test.
[270] Under the “goal of the dealing”, the
focus is on considering the fairness of the goal for which the permitted
activity (e.g. research, education) took place. In this context, the question
is the fairness of the goal of allowing students to access required course
materials for education. Considered in isolation, this would tend toward
fairness (although if considered in tandem with access to alternatives, its
character may actually change to less fair). Of course, cost saving could be a
goal of this activity as well, but as fair dealing embeds the ability of the
user to access the content without compensating the creator that feature would
be present in all fair dealing situations.
[271] However, in this case, the history of the dispute is a relevant
consideration. In July 2011, York advised Access of its intention to opt out of
the Interim Tariff – as described by Lynch, the opting out was motivated by Access’s
proposed tariff rate of $45 per FTE student.
In
the Spring of 2012, York chose not to enter into the 2012 AUCC model licence
offered by Access because the cost was $26 per FTE, despite the fact that in
2010 York had effectively paid Access $38 per FTE (the sum of fixed and
variable rate) just for permission to photocopy.
[272] 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.
[273] 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.
[274] I do not accept Access’s contention that the “purpose” must be transformational to tend toward
fairness – the case law does not support such a submission.
[275] In this case, while the goal of the dealing is mixed and is a factor
to be considered, it is not a strong factor in the fairness analysis.
(b)
Character of Dealing
[276] Under this factor, courts must examine how the work was dealt with,
the number of copies made, and the extent of dissemination. For example,
multiple widely distributed copies will tend to be unfair. In contrast, if the
copy is destroyed after its use, then this may lean towards a finding of
fairness. It may be relevant to consider the custom or practice in the industry
to determine whether the character of the dealing is fair (see CCH at
para 55; SOCAN at para 37).
[277] However, the Supreme Court of Canada has cautioned that the “character” and “amount”
inquiries must not be conflated. Specifically, the “character
factor” involves a quantification of the total number of pages copied
(i.e. a quantitative assessment based on aggregate use), whereas the “amount factor” is an examination of the proportion
between the excerpted copy and the entire work (Alberta (Education)
at paras 28-30; SOCAN at para 42).
[278] In CCH, the character factor supported fair dealing. Under
the Great Library’s policy, only single copies of works for specific purposes
were allowed. The Supreme Court of Canada noted that “[c]opying
a work for the purpose of research on a specific legal topic is generally fair dealing”
(CCH at para 67).
[279] In SOCAN, it was found that no copy existed after the song
preview was heard. As previews were streamed, users did not obtain permanent
copies and the files were automatically deleted from the user’s computer after
listening. This supported fairness of dealing.
[280] However, in the instant case, there were no such limitations on the
number of copies or on the “life” of such
copies. The number of copies made, and which could be made in the future, is
significant.
[281] In assessing this quantification, the Court had to rely on
conflicting expert opinions. Wilk’s expert report was riddled with assumptions
and was further rendered unhelpful due to the admittedly inaccurate licensing
information provided by York. As indicated earlier, I preferred the report of
Gauthier.
[282] While the use of the unique access number and its statistics would,
at first, seem to be a more consistent basis upon which to determine how many
students actually accessed material as compared to enrolment data, on the facts
in this case it was less reliable than one expected.
[283] By using enrolment as a basis for calculation, Gauthier had to
estimate the number of “exposures” on LMSs
during the sample period.
[284] However, like much of the data provided by York, the unique user
access data was very unreliable. Because of the deficient unique user access
data combined with the other weaknesses of Wilk’s evidence, and bearing in mind
that York had the burden of proof on this factor, the Court is forced to rely
on enrolment data as a basis for the total number copied.
[285] This data’s usefulness is also undermined by the fact that no
disaggregation was attempted. For example, the number of exposures per FTE per
year is significantly low when considered from an art’s degree perspective but
quite high for a science lab-based degree.
[286] However, recognizing some of the limitations in the data, it is
appropriate to view the copies in total despite York’s argument that this
approach disadvantages large institutions. It is York’s practices that are at
issue and it is its data that is raising the issue.
[287] York has argued that because it has separate licences and
permissions, the amount of copying at issue is reduced. However, York has
conceded that its evidence on licensing information is inaccurate and its ability
to marry up copies with the relevant licence or permission is impossible to
rely upon.
[288] Access suggested that pre-meditated copying was presumptively less
fair. Certainly the facts in CCH and Alberta (Education) were
more cases of situational/spontaneous copying than the institutional copying at
York. However, SOCAN was a pre-planned and coordinated music preview
system.
One
cannot extrapolate from these cases that institutional copying is inherently
less fair; however, as the copying is institutionalized, the institutional
criteria for permitted copying (i.e. number of chapters allowed to be copied),
protections, restrictions, and compulsory compliance regimes take on added
importance under the other factors at issue.
[289] Given the expert evidence, and with recognition of the problems with
the data, the character of dealing in this case tends toward the unfairness end
of the spectrum.
(c)
Amount of the Dealing
[290] The “amount” refers to the quantity
of the work taken. In SOCAN, the Supreme Court of Canada found that the “amount of dealing” factor was to be based on the
individual use and the proportion of the excerpt used in relation to the whole
work (para 41; see also Alberta (Education) at para 29). This factor
requires an assessment of both the quantitative amount of the dealing and the
qualitative importance of the part copied (CCH at para 56).
(i)
Quantitative
[291]
The quantity of the work taken will not be
determinative of fairness; however, it can help in that determination. As held
in CCH at para 56, it may be possible to deal fairly with an entire
work.
[292] In CCH, the amount of the dealing indicated fair dealing. The
Great Library’s policy noted that it would typically honour requests for a copy
of one case, article, or statutory reference. However, the Reference Librarian
would review requests for a copy of more than 5% of a secondary source.
Further, there was no evidence of specific patrons submitting numerous requests
for multiple reported judicial decisions from the same reported series over a
short period of time (CCH at para 68). Again, CCH is
distinguishable on the facts that tended to indicate “fairness”
in that case and whose absence shows unfairness in this case.
[293] Under this factor, the courts are to consider the “thresholds” for copying – how much is copied out of
different types of works. In this case, this Court is to consider the
thresholds in the Guidelines, the rationale for these thresholds, and the amount
of any one type of work which can be copied.
[294] This factor is particularly important in this case. It is also a
very problematic area for York and its attempt to cast the Guidelines as being
fair.
[295] The “amount of the dealing” factor is
an examination of the proportion between the excerpted copy and the entire
work. The Guidelines delineate certain thresholds of what is presumptively fair
(i.e. two chapters of a book or no more than 10%), without any attention to the
second part of the analysis for the amount of the dealing or the qualitative
importance of the part copied.
(ii)
Qualitative
[296] In absolute terms, the amount of coursepack copying by York and the
volume of coursepack and LMS copying that occurred during the period of
September 1, 2011 to December 31, 2013 (the agreed sampling period) was
significant.
[297] In terms of Access, York was the largest producer of coursepacks of
any licensed post-secondary institution. Between 2005-2011, York Printing
Services copied 122 million print exposures for use in coursepacks – an average
of 17.5 million exposures per year. A student would receive 387 exposures per
year in coursepacks, 80% of which came from books.
[298] Following York’s decision to “opt out”
of the Interim Tariff, York outsourced the majority of its coursepack
production to three external copy shops which copied between 4.4 million
and 7.6 million exposures per year for York between 2011 and 2013 – 90% of
which were from books.
[299] Although a portion of this copying was pursuant to permissions,
York’s evidence on permissions, including its tracking of permissions, was
suspect and cannot be relied upon.
[300] The evidence is that if the requested declaration is granted, the
majority of copying will revert in-house to York without payment of copyright
charges.
[301] It is relevant to consider the aggregate volume of copying by all
post-secondary institutions that would be allowed if the Guidelines or similar
policies were adopted. There is a problem with the current data because of
unreported copying. However, when all such institutions were licensed, they
produced 120 million exposures of published works per year in printed
coursepacks alone.
[302] In respect of LMSs, the story of the quantum is much the same as the
evidence of Gauthier establishes.
[303] It would be counter to all of the evidence to suggest that copying
at York is insignificant. In 2013, York copied an aggregate volume of 17.6
million exposures of materials relevant to the Guidelines in either coursepacks
or LMSs. The trend is toward digital copying, which York contends is free.
[304] Therefore, the qualitative copying is immense and the Guidelines are
relevant to a large portion of the copying.
[305] In a copying regime based on policy or guidelines, part of the
fairness analysis must consider the fairness of the delineated amounts and
types. The Court must be able to examine the rationale for these thresholds. It
is incumbent on the user institution to explain the basis for the delineated
amounts and types (the thresholds) and to explain why they are, in and of
themselves or in combination with other features, fair.
[306] York did not provide a meaningful response or any evidence with
respect to the above. For example, there was no rationale advanced for any
threshold such as the selection of 10% of a work or of one of anything else
specified (whichever is greater).
[307] It is no response to the issue to say that the thresholds are fair
because AUCC determined that they were fair. The AUCC witnesses did not explain
the choice of thresholds. The evidence of AUCC’s development of the thresholds
shows no external basis for the thresholds – for example, there was no outside
consultation, there were no studies conducted, and there was no comparative
analysis done on fair dealing criteria in other jurisdictions.
[308] This failure to justify the choice of thresholds seriously
undermines the overall fairness of the York Guidelines.
[309] While arbitrary or bright line thresholds may be convenient,
convenience of the user is not a factor that the Supreme Court of Canada had
directed courts to consider. Even if it was, there must still be an acceptable
rationale for such thresholds.
[310] As became apparent during the course of the trial and as is clear
from the terms of the Guidelines, the permitted copying can, in fact, be 100%
or such a large part of a work as to appropriate the whole (e.g. for a journal
article in a periodical, a short story in an anthology, or a chapter in an edited
book).
[311] Examples referred to in the trial included the classic Canadian
short story The Hockey Sweater, which
could be copied freely if it appeared in an anthology but would have copyright
protection if copied on its own.
Similarly,
referring in argument and questioning to Margaret MacMillan’s superb book Paris 1919: Six Months That Changed the World,
numerous chapters could individually be segregated for use in different
courses, effectively eviscerating the copyright protection on the book.
[312] To the consideration of this form of overcoming copyright must be
added the matter of compound copying as demonstrated by Access. Not only are
the works copied in whole, but they are also copied multiple times.
[313] The Court is not persuaded that the purposes of education, private
study, and research point towards fair dealing, as was argued by York, when such
larger portions are copied. This argument is to rely on the stage one analysis
of permitted purpose to support fairness. This is circular reasoning amounting
to nothing more than saying that copying for educational purposes is fair
because it is copying for the purposes of education.
[314] The unfairness evident in this part of the six-factor exercise is
compounded by the absence of any meaningful control over the portions of publications
copied or any monitoring of compliance, be it pre- or post-copying, which also
serves to render the thresholds largely meaningless.
[315] As a further part of the analysis of this factor, some consideration
is to be given to the importance of the work. This consideration has not been
clearly defined in the jurisprudence, and basing the consideration on the
user’s view of importance introduces highly subjective and difficult-to-assess
influences.
[316] Aspects of this qualitative importance are subsumed in the above
quantitative analysis. York failed to adduce any evidence with respect to the
qualitative importance of the parts copied.
[317] However, given the thresholds of the Guidelines, parts which may be
copied can be the qualitative core of the work, and the example of The Hockey Sweater is but one example. Where a
chapter from a book can stand alone and be important enough to be taken from
the whole for inclusion in a course’s required reading, there is little doubt
that the copied part is qualitatively significant to the work and to the
author’s contribution.
(iii)
Conclusion on the Amount of the Dealing
[318] In summary on this factor, York fails almost completely both
quantitatively and qualitatively. In the context of the case, this is a
critical factor which establishes that there is nothing fair about the amount
of the dealing.
(d)
Alternatives to the Dealing
[319]
The Supreme Court of Canada in CCH
conveniently summarized this factor as follows:
57 Alternatives to dealing with the
infringed work may affect the determination of fairness. If there is a
non-copyrighted equivalent of the work that could have been used instead of the
copyrighted work, this should be considered by the court. I agree with the
Court of Appeal that it will also be useful for courts to attempt to determine
whether the dealing was reasonably necessary to achieve the ultimate purpose.
For example, if a criticism would be equally effective if it did not actually
reproduce the copyrighted work it was criticizing, this may weigh against a
finding of fairness. [Emphasis added]
[320] The availability of a licence is not a relevant alternative in
deciding whether a dealing is fair. This is because “[i]f
a copyright owner were allowed to license people to use its work and then point
to a person’s decision not to obtain a licence as proof that his or her
dealings were not fair, this would extend the scope of the owner’s monopoly”
(CCH at para 70).
[321] In CCH, it was not apparent that there were alternatives to
the Great Library’s custom photocopy service given that patrons could not
always be expected to conduct research on-site – twenty percent of requesters
lived outside of Toronto, and researchers could not borrow materials due to
heavy demand (para 69).
[322] In SOCAN, the Supreme Court of Canada found that the
alternative of allowing returns for downloading the wrong musical track was
expensive, technologically complicated, and market inhibiting. Further, none of
the alternatives (such as providing users with album artwork, textual
descriptions, or album reviews) would allow the customer to preview what the
music sounds like. Accordingly, the short, low-quality streamed previews
were found to be reasonably necessary to assist consumers in researching what
to purchase.
[323] In Alberta (Education), the Supreme Court of Canada held that
buying books for each student was not a realistic alternative to teachers
copying short excerpts to supplement student textbooks. This was in part
justified by the fact that the schools had already purchased originals and were
simply facilitating access.
[324] However, the situations contemplated in Alberta (Education)
bear little resemblance to the facts of this case. It is one thing for a
teacher to have the school librarian run off some copies of a book or article
in order to supplement school texts, and it is quite another for York to
produce coursepacks and materials for distribution through LMSs, which stand in
place of course textbooks, through copying on a massive scale.
As
became clear in this case, the term “short excerpt”
was used to describe much more than a few lines or a snippet of a work.
[325] In CCH, courts were directed to the question of whether the
dealing (copying) was reasonably necessary to achieve the ultimate purpose.
[326] The ultimate purpose in this case must be the education of the
student. The Court accepts the evidence of a number of professors that the days
of one principal textbook used to teach a course are gone. This is particularly
so in more advanced courses. Core course material is now sourced from multiple
publications and resources.
[327] Quite apart from any issue of academic freedom, to premise this
analysis on the presumption of the availability of a core single resource for a
course is to potentially limit the educational opportunities of students.
[328] The use of copying is reasonably necessary to achieve the ultimate
purpose of education, whether this is physical photocopying or digital copying.
[329] While as a general principle this factor favours York and its
asserted fairness, the level of fairness is diminished because York has not
actively engaged in the consideration or use of alternatives which exist or are
in development.
[330] There are alternatives – these include using custom book services,
purchasing individual chapters or articles from the publisher, or purchasing
more of the necessary books and articles. There is just no reasonable free
alternative to copying.
[331] With the mix of factors and the weighing thereof, this factor
favours York but not as strongly as it has argued.
(e)
Nature of the Work
[332] The “nature of the work” factor has
not been held to be a determinative factor. In CCH, this factor was
linked to the following question: is the work of such a nature that its
reproduction would lead to a wider public dissemination of the work? This is
one of the goals of copyright law.
[333] The works at issue in this case are published original works such as
poems, chapters from books, short stories, learned journal articles, newspaper
articles, and even comics. These works were developed through the use of creativity,
complex analytical analysis, skill, perspective, and judgment by authors.
Typically, the works required substantial research, editorial judgment, and
pedagogical expertise and merit – otherwise, as professors testified, they
would not be selected for inclusion in coursepacks and LMSs.
[334] From the publisher perspective, there is significant skill, effort,
and investment involved in bringing a book to publication or in selecting
materials for inclusion in journals and collections. Some works are tailor made
for post-secondary students and others for a wider audience of whom students
are only a part.
[335] The evidence is that higher education publishing involves highly
specialized publishing of very complex information. A textbook likely involves
significant work, research, skill, and expense to bring to publication. In the
Canadian educational context, many publications focus just on the Canadian
perspective and other publications need to be carefully Canadianized.
[336] Not all the works at issue are written by scholars and faculty who
do so as part of their academic duties. Many of the works covered by the
Guidelines are written by professional writers or by academics acting beyond
their purely academic role. The works are published by professional commercial
publishers. Most of these people are attempting to make a living from writing
and publishing.
[337] Aside from the dependency or reliance on income from writing and
publishing, the notion of the benefits of dissemination must be carefully
considered. The Guidelines are not established to motivate dissemination. There
is no evidence that these professional writers and publishers need the
Guidelines to assist in the dissemination of their works. Dissemination may
improve because under the Guidelines the works are free, but the same can be
said of any goods or services that are provided for free.
[338] While the nature of the work has been held not to be a determinative
factor, it is part of the balancing exercise in determining whether the
Guidelines are fair. This factor tends towards the negative end of the fairness
spectrum due to the way in which the nature of the works is treated and the
manner in which the Guidelines are applied.
(f)
Effect of the Dealing
[339] The effect of the dealing – that is, the negative impacts of the
dealing on the creators and publishers – is a matter for which Access bears the
burden.
[340] This factor is an important one but, as instructed in CCH, it
is neither the only factor nor is it the most important factor that the Court
must consider (para 59).
[341] The Court is required to look at the competition between the reproduced
work and the original, as such competition may suggest that the dealing is not
fair.
59 … If the reproduced work is likely
to compete with the market of the original work, this may suggest that the
dealing is not fair. Although the effect of the dealing on the market of the
copyright owner is an important factor, it is neither the only factor nor the
most important factor that a court must consider in deciding if the dealing is
fair. … [Emphasis added]
[342] Alberta (Education) is instructive in
this regard. The Supreme Court of Canada concluded that a decline in sales,
without sufficient evidence of a link to the photocopying of short excerpts,
was not enough to find that copying had such an impact as to be unfair (para
35). The Supreme Court of Canada instructed that there must be evidence of a
link, without saying that copying had to be the only or dominant reason for the
decline.
[343] Also of relevance to this case is that the Supreme Court of Canada
found it difficult to see how teachers’ copying competed with the market for
textbooks given the finding that the teachers’ copying was limited to short
excerpts of complementary textbooks. In the absence of photocopies, students
would either do without the material or consult a copy of the book already
owned by the school.
[344] There is no parallel in the present case to the limited copying of
excerpts discussed in Alberta (Education). The Guidelines permit
significant copying of portions of books, articles, journals, and other works.
Copying at York is a mass and massive enterprise where coursepacks and materials
distributed through LMSs operate as the source material for education. York
professors indicated the undesirability and/or impracticality of requiring
students to purchase the source material or of having such originals set aside
in the library.
This
is not a fault of York, it is the manner of modern education – however, that
does not necessarily mean that it is fair when no compensation is paid.
[345] The Court has already discussed the expert evidence and its finding
that the Plaintiff’s evidence of Dobner and Gauthier is to be preferred.
[346] The parties acknowledged that there had been declines in sales and in
Access’s licensing revenues in respect of post-secondary institutions. The
dispute is as to the “cause”, with York seeking
to pass all material negative impacts off to developing technologies.
[347] Dobner concluded that since the introduction of the Guidelines,
there has been an acceleration of the decline in the sale of works produced for
the post-secondary educational market and a transfer of wealth from content
producers to content users. He stated that “the
magnitude of the overall impact [of dealing in a work] is indicative of the
significance of the impact on individual works”.
[348] I agree with Access that in considering the “effect
of the dealing” as part of the Court’s overall assessment of fairness,
the Court should consider all actual and likely impacts on all original content
contributors, both publishers and creators, who contribute works that are used
and copied under the Guidelines in the post-secondary educational market,
including whether the copying acts as a substitute for the original work.
[349] The Court has commented a number of times on the substitutability of
the copies for the original works in these circumstances and has found the
copying to be a meaningful substitute.
[350] As pointed out by Access, the problem of quantifying the impact of
the Guidelines on sales is that copying under the limits now set out in the
Guidelines has been occurring for 20 years. There is no baseline for quantification
because the copying had already been substituted for the original.
However,
under the prior circumstances, the creators and publishers were paid. The loss
of revenue to Access is an appropriate surrogate for the nature and quantity of
copying and for the negative impacts.
[351] The impact of the Guidelines can be summarized as follows:
•
They contributed to a drop in sales and
accelerated the drop in unit sales – up to 6.9% per year and 3.4% in revenues
between 2012 and 2015. Precise allocation of the amounts attributable to the
Guidelines is not possible, but it was a material contribution.
•
They caused a loss of licensing income to
creators and publishers as evidenced by the loss of licensing income. PwC
calculated the range of loss to Access alone at between $800,000 and $1.2
million per year.
•
Actual and expected loss of licensing income
resulting from the Guidelines has a negative impact on publishers. Licensing
revenues represented about 20% of publishers’ revenues.
•
Actual and expected loss of licensing income has
a negative impact on creators. While the Writers’ Union survey had some
problems, it confirmed the importance of licensing revenue to most writers and
the materiality of a loss of revenue.
•
On a balance of probability and recognizing the
inherent unreliability of predicting the future, there is likely to be adverse
long-term impacts of the Guidelines on investment, content, and quality.
[352] While much of Access’s evidence of impacts on the market was general
in nature, it establishes that the likelihood of negative impacts from York’s
own Guidelines will be similar. This is sensible given the massive amounts of
copying at issue, the history of payments to Access prior to York opting out of
the Interim Tariff, and the size of York as the second largest university in Ontario.
[353] Therefore, the Court concludes that the Guidelines have caused and
will cause material negative impacts on the market for which Access would
otherwise have been compensated for York’s copying.
[354] The Court does share York’s desire to emphasize the statement in CCH
that the effect of the dealing on the market is neither the only factor nor the
most important factor to be considered.
However,
the impacts are negative and this points to unfairness.
[355] To address an additional argument raised by York that Parliament was
aware of the potential negative impacts when it amended the legislation, the
Court is not persuaded to read the “fairness”
requirements differently than precedents have taught.
If
Parliament had chosen to dismiss these concerns when it was considering the
amendments, it could have easily written “fair dealing”
out of s 29.
(3)
Conclusion
[356] 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 declaration requested will be
denied with costs to the Plaintiff.
[357] In view of the need for the parties to plan for the new academic
year, this Judgment and Reasons are being issued in one language with
translation to follow as quickly as is feasible.
"Michael L. Phelan"
Ottawa, Ontario
July 12, 2017
SCHEDULE A
Fair Dealing
Guidelines for York Faculty and Staff (11/13/12)
I.
BACKGROUND
An important
exception to the right of copyright owners to control the reproduction of their
works is known as the “fair dealing”
exception. This exception attempts to balance the rights of the copyright owner
with the needs of others, who require access to copyrighted material to pursue
their research and studies. The fair dealing provision in the Copyright Act
permits use of a copyright-protected work without permission from the copyright
owner or the payment of copyright royalties. To qualify for fair dealing, two
tests must be passed.
First, the “dealing” must be for a purpose stated in the
Copyright Act:
- research;
- private study;
- criticism, review;
- news reporting;
- education;
- satire; or
- parody.
The second
test is that the dealing must be “fair”. The
Supreme Court of Canada has provided guidance as to what this test means in
educational institutions.
York
University’s Fair Dealing Guidelines provide direction to Teaching Staff** and
Other Staff* on how the Fair Dealing Exception applies to certain copying
practices at York while providing reasonable safeguards for the copyright
holders of copyright-protected works in accordance with Canadian copyright law.
Note: There may be other requirements related to interlibrary loans,
university library reserves and document delivery to patrons of the York University
Libraries.
II.
FAIR DEALING GUIDELINES
1.
Teaching Staff* and Other Staff** may copy, in
paper or electronic form, Short Excerpts (defined below) from a copyright
protected work, which includes literary works, musical scores, sound
recordings, and audiovisual works (collectively, a “Work”
within the university environment for the purposes of research, private study,
criticism, review, news reporting, education, satire or parody in accordance
with these Guidelines.
2.
The copy must be a “Short
Excerpt”, which means that it is either:
10% or less of
a Work, or
no more than:
a) one chapter from a book;
b) a single article from a periodical;
c) an entire artistic work (including a painting, photograph, diagram,
drawing, map, chart and plan) from a Work containing other artistic works;
d) an entire single poem or musical score from a Work containing other
poems or musical scores; or
e) an entire entry from an encyclopedia, annotated bibliography,
dictionary or similar reference work,
whichever is
greater.
3.
The Short Excerpt in each case must contain no
more of the work than is required in order to achieve the fair dealing purpose;
4.
A single copy of a short excerpt from a
copyright-protected work may be provided or communicated to each student
enroled in a class or course:
a) as a class handout;
b) as a posting to a learning or course management system (e.g. Moodle
or Quickr) that is password protected or otherwise restricted to students of
the university; or
c) as part of a course pack.
5.
Any fee charged by York for copying a Short
Excerpt must not exceed the costs, including overhead costs, of the making of
the copy.
6.
Copies of Short Excerpts made for the purpose of
news reporting, criticism or review should mention the source and, if given in
the source, the name of the author(s) or creator(s) of the Work.
7.
Where the Fair Dealing Exception allows the
copying of only a portion of a Work, no member of the Teaching Staff or Other
Staff may make copies of multiple Short Excerpts with the effect of exceeding
the copying limits set out in Section 2 of the Guidelines.
III.
YORK UNIVERSITY SUPPORT
8.
The circumstances that qualify within the Fair
Dealing Exception may vary from case to case. The Fair Dealing Exception will
cover copying that you undertake in accordance with these Guidelines. The Fair
Dealing Exception may also cover certain instances of copying that are not
described under these Guidelines. If you have a request for copying that you
believe should be covered by the Fair Dealing Exception but is not explicitly
permitted by these Guidelines, please contact the Copyright Office at copy@yorku.ca.
A determination will be made as to whether the proposed copies fall within the
Fair Dealing Exception, considering all of the relevant circumstances,
including:
a) the purpose of the proposed copying, including whether it is for
research, private study, criticism, review, news reporting; education, satire
or parody;
b) the character of the proposed copying, including whether it involves
single or multiple copies, and whether the copy is destroyed after it is used
for its specific intended purpose;
c) the amount of the dealing from the individual user’s perspective,
including the proportion of the Work that is proposed to be copied and the
importance of that excerpt in relation to the whole Work;
d) alternatives to copying the Work, including whether there is a
non-copyrighted equivalent available;
e) the nature of the Work, including whether it is published or
unpublished; and
f) the effect of the copying on the Work, including whether the copy
will compete with the commercial market of the original Work.
9.
Other sources of permission (including
permission from a copyright holder) will be required where the copy falls
outside of these Guidelines. For assistance in obtaining the permission
required for this copying or posting, contact York University’s Copyright
Office at copy@yorku.ca.
“Teaching Staff”* means any
person who teaches at or under the auspices of York University, including
without limitation faculty members, adjunct and clinical faculty, lecturers,
instructors, and teaching assistants.
“Other Staff”** means
full-time and part-time staff members of York University and any other person
who works at or under the auspices of York University who is not Teaching
Staff.
SCHEDULE B
Main Action
Copyright Act,
RSC 1985, c C-42
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Interim decisions
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Décisions provisoires
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66.51 The Board may, on application,
make an interim decision.
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66.51
La Commission peut, sur demande, rendre des décisions provisoires.
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…
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[…]
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Publication of approved tariffs
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Publication du tarif homologué
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68 (4) The Board shall
(a) publish the approved tariffs in the Canada Gazette as soon
as practicable; and
(b) send a copy of each approved tariff, together with the reasons
for the Board’s decision, to each collective society that filed a proposed tariff
and to any person who filed an objection.
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68 (4)
Elle publie dès que possible dans la Gazette du Canada les tarifs
homologués; elle en envoie copie, accompagnée des motifs de sa décision, à
chaque société de gestion ayant déposé un projet de tarif et aux opposants.
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|
…
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[…]
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Effect of fixing royalties
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Portée de l’homologation
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68.2 (1) Without prejudice to any
other remedies available to it, a collective society may, for the period
specified in its approved tariff, collect the royalties specified in the tariff
and, in default of their payment, recover them in a court of competent
jurisdiction.
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68.2 (1) La société de gestion peut, pour la période mentionnée au tarif
homologué, percevoir les redevances qui y figurent et, indépendamment de tout
autre recours, le cas échéant, en poursuivre le recouvrement en justice.
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|
…
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[…]
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Collective societies
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Sociétés de gestion
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70.1 Sections 70.11 to 70.6 apply in
respect of a collective society that operates
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70.1
Les articles 70.11 à 70.6 s’appliquent dans le cas des sociétés de gestion
chargées d’octroyer des licences établissant :
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(a) a licensing scheme, applicable in relation to a repertoire of
works of more than one author, pursuant to which the society sets out the
classes of uses for which and the royalties and terms and conditions on which
it agrees to authorize the doing of an act mentioned in section 3 in respect
of those works;
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a) à l’égard d’un répertoire d’oeuvres de
plusieurs auteurs, les catégories d’utilisation à l’égard desquelles
l’accomplissement de tout acte mentionné à l’article 3 est autorisé ainsi que
les redevances à verser et les modalités à respecter pour obtenir une
licence;
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(a.1) a licensing scheme, applicable in relation to a repertoire of
performer’s performances of more than one performer, pursuant to which the
society sets out the classes of uses for which and the royalties and terms
and conditions on which it agrees to authorize the doing of an act mentioned
in section 15 in respect of those performer’s performances;
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a.1) à l’égard d’un répertoire de prestations
de plusieurs artistes-interprètes, les catégories d’utilisation à l’égard
desquelles l’accomplissement de tout acte mentionné à l’article 15 est
autorisé ainsi que les redevances à verser et les modalités à respecter pour
obtenir une licence;
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(b) a licensing scheme, applicable in relation to a repertoire of
sound recordings of more than one maker, pursuant to which the society sets
out the classes of uses for which and the royalties and terms and conditions
on which it agrees to authorize the doing of an act mentioned in section 18
in respect of those sound recordings; or
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b) à l’égard d’un répertoire
d’enregistrements sonores de plusieurs producteurs d’enregistrements sonores,
les catégories d’utilisation à l’égard desquelles l’accomplissement de tout
acte mentionné à l’article 18 est autorisé ainsi que les redevances à verser
et les modalités à respecter pour obtenir une licence;
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(c) a licensing scheme, applicable in relation to a repertoire of
communication signals of more than one broadcaster, pursuant to which the
society sets out the classes of uses for which and the royalties and terms
and conditions on which it agrees to authorize the doing of an act mentioned
in section 21 in respect of those communication signals.
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c) à l’égard d’un répertoire de signaux de
communication de plusieurs radiodiffuseurs, les catégories d’utilisation à
l’égard desquelles l’accomplissement de tout acte mentionné à l’article 21
est autorisé ainsi que les redevances à verser et les modalités à respecter pour
obtenir une licence.
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Public information
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Demandes de renseignements
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70.11 A collective society referred to
in section 70.1 must answer within a reasonable time all reasonable requests
from the public for information about its repertoire of works, performer’s
performances, sound recordings or communication signals.
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70.11
Ces sociétés de gestion sont tenues de répondre, dans un délai raisonnable,
aux demandes de renseignements raisonnables du public concernant le
répertoire de telles oeuvres, de telles prestations, de tels enregistrements
sonores ou de tels signaux de communication, selon le cas.
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Tariff or agreement
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Projets de tarif ou ententes
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70.12 A collective society may, for
the purpose of setting out by licence the royalties and terms and conditions
relating to classes of uses,
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70.12
Les sociétés de gestion peuvent, en vue d’établir par licence les redevances
à verser et les modalités à respecter relativement aux catégories
d’utilisation :
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(a) file a proposed tariff with the Board; or
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a) soit déposer auprès de la Commission un
projet de tarif;
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(b) enter into agreements with users.
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b) soit conclure des ententes avec les
utilisateurs.
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|
Filing of proposed tariffs
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Dépôt d’un projet de tarif
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70.13 (1)
Each collective society referred to in section 70.1 may, on or before the
March 31 immediately before the date when its last tariff approved pursuant
to subsection 70.15(1) expires, file with the Board a proposed tariff, in
both official languages, of royalties to be collected by the collective
society for issuing licences.
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70.13 (1) Les sociétés de gestion peuvent déposer
auprès de la Commission, au plus tard le 31 mars précédant la cessation
d’effet d’un tarif homologué au titre du paragraphe 70.15(1), un projet de
tarif, dans les deux langues officielles, des redevances à percevoir pour
l’octroi de licences.
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Where no previous tariff
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Sociétés non régies par un tarif homologué
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(2) A collective society referred to
in subsection (1) in respect of which no tariff has been approved pursuant to
subsection 70.15(1) shall file with the Board its proposed tariff, in both
official languages, of all royalties to be collected by it for issuing
licences, on or before the March 31 immediately before its proposed effective
date.
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(2)
Lorsque les sociétés de gestion ne sont pas régies par un tarif homologué au
titre du paragraphe 70.15(1), le dépôt du projet de tarif auprès de la
Commission doit s’effectuer au plus tard le 31 mars précédant la date prévue
pour sa prise d’effet.
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Application of certain provisions
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Application de certaines dispositions
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70.14 Where a proposed tariff is filed
under section 70.13, subsections 67.1(3) and (5) and subsection 68(1) apply,
with such modifications as the circumstances require.
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70.14
Dans le cas du dépôt, conformément à l’article 70.13, d’un projet de tarif,
les paragraphes 67.1(3) et (5) et 68(1) s’appliquent avec les adaptations
nécessaires.
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Certification
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Homologation
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70.15 (1) The Board shall certify the
tariffs as approved, with such alterations to the royalties and to the terms
and conditions related thereto as the Board considers necessary, having
regard to any objections to the tariffs.
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70.15 (1) La Commission homologue les projets de tarifs après avoir apporté
aux redevances et aux modalités afférentes les modifications qu’elle estime
nécessaires compte tenu, le cas échéant, des oppositions.
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|
Application of certain provisions
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Application de certaines dispositions
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(2) Where a tariff is approved under
subsection (1), subsections 68(4) and 68.2(1) apply, with such modifications
as the circumstances require.
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(2)
Dans le cas d’un tarif homologué, les paragraphes 68(4) et 68.2(1)
s’appliquent avec les adaptations nécessaires.
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Distribution, publication of notices
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Publication d’avis
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70.16 Independently of any other
provision of this Act relating to the distribution or publication of
information or documents by the Board, the Board shall notify persons
affected by a proposed tariff, by
(a) distributing or publishing a notice, or
(b) directing another person or body to distribute or publish a
notice,
in such manner and on such terms and conditions as the Board sees
fit.
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70.16
La Commission doit ordonner l’envoi ou la publication d’un avis à l’intention
des personnes visées par le projet de tarif, indépendamment de toute autre
disposition de la présente loi relative à l’envoi ou à la publication de
renseignements ou de documents, ou y procéder elle-même, et ce de la manière
et aux conditions qu’elle estime indiquées.
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Prohibition of enforcement
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Interdiction des recours
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70.17 Subject to section 70.19, no
proceedings may be brought for the infringement of a right referred to in
section 3, 15, 18 or 21 against a person who has paid or offered to pay the
royalties specified in an approved tariff.
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70.17
Sous réserve de l’article 70.19, il ne peut être intenté aucun recours pour
violation d’un droit prévu aux articles 3, 15, 18 ou 21 contre quiconque a
payé ou offert de payer les redevances figurant au tarif homologué.
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Continuation of rights
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Maintien des droits
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70.18 Subject to section 70.19, where
a collective society files a proposed tariff in accordance with section
70.13,
(a) any person authorized by the collective society to do an act
referred to in section 3, 15, 18 or 21, as the case may be, pursuant to the
previous tariff may do so, even though the royalties set out therein have
ceased to be in effect, and
(b) the collective society may collect the royalties in accordance
with the previous tariff,
until the proposed tariff is approved.
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70.18
Sous réserve de l’article 70.19 et malgré la cessation d’effet du tarif,
toute personne autorisée par la société de gestion à accomplir tel des actes
visés aux articles 3, 15, 18 ou 21, selon le cas, a le droit, dès lors qu’un
projet de tarif est déposé conformément à l’article 70.13, d’accomplir cet
acte et ce jusqu’à l’homologation d’un nouveau tarif. Par ailleurs, la
société de gestion intéressée peut percevoir les redevances prévues par le
tarif antérieur jusqu’à cette homologation.
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Where agreement exists
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Non-application des articles 70.17 et 70.18
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70.19 If there is an agreement
mentioned in paragraph 70.12(b), sections 70.17 and 70.18 do not apply in
respect of the matters covered by the agreement.
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70.19
Les articles 70.17 et 70.18 ne s’appliquent pas aux questions réglées par
toute entente visée à l’alinéa 70.12b).
|
|
Agreement
|
Entente
|
|
70.191 An approved tariff does not
apply where there is an agreement between a collective society and a person
authorized to do an act mentioned in section 3, 15, 18 or 21, as the case may
be, if the agreement is in effect during the period covered by the approved
tariff.
|
70.191
Le tarif homologué ne s’applique pas en cas de conclusion d’une entente entre
une société de gestion et une personne autorisée à accomplir tel des actes
visés aux articles 3, 15, 18 ou 21, selon le cas, si cette entente est
exécutoire pendant la période d’application du tarif homologué.
|
|
Fixing of Royalties in Individual Cases
|
Fixation des redevances dans des cas particuliers
|
|
Application to fix amount of royalty, etc.
|
Demande de fixation de redevances
|
|
70.2 (1) Where a collective society
and any person not otherwise authorized to do an act mentioned in section 3,
15, 18 or 21, as the case may be, in respect of the works, sound recordings
or communication signals included in the collective society’s repertoire are
unable to agree on the royalties to be paid for the right to do the act or on
their related terms and conditions, either of them or a representative of
either may, after giving notice to the other, apply to the Board to fix the
royalties and their related terms and conditions.
|
70.2 (1) À défaut d’une entente sur les redevances, ou les modalités
afférentes, relatives à une licence autorisant l’intéressé à accomplir tel
des actes mentionnés aux articles 3, 15, 18 ou 21, selon le cas, la société
de gestion ou l’intéressé, ou leurs représentants, peuvent, après en avoir
avisé l’autre partie, demander à la Commission de fixer ces redevances ou
modalités.
|
|
Fixing royalties, etc.
|
Modalités de la fixation
|
|
(2) The Board may fix the royalties and
their related terms and conditions in respect of a licence during such period
of not less than one year as the Board may specify and, as soon as
practicable after rendering its decision, the Board shall send a copy
thereof, together with the reasons therefor, to the collective society and
the person concerned or that person’s representative.
|
(2) La
Commission peut, selon les modalités, mais pour une période minimale d’un an,
qu’elle arrête, fixer les redevances et les modalités afférentes relatives à
la licence. Dès que possible après la fixation, elle en communique un double,
accompagné des motifs de sa décision, à la société de gestion et à
l’intéressé, ou au représentant de celui-ci.
|
|
…
|
[…]
|
|
Effect of Board decision
|
Portée de la fixation
|
|
70.4 Where any royalties are fixed for
a period pursuant to subsection 70.2(2), the person concerned may, during the
period, subject to the related terms and conditions fixed by the Board and to
the terms and conditions set out in the scheme and on paying or offering to
pay the royalties, do the act with respect to which the royalties and their
related terms and conditions are fixed and the collective society may,
without prejudice to any other remedies available to it, collect the
royalties or, in default of their payment, recover them in a court of
competent jurisdiction.
|
70.4
L’intéressé peut, pour la période arrêtée par la Commission, accomplir les
actes à l’égard desquels des redevances ont été fixées, moyennant paiement ou
offre de paiement de ces redevances et conformément aux modalités afférentes
fixées par la Commission et à celles établies par la société de gestion au
titre de son système d’octroi de licences. La société de gestion peut, pour
la même période, percevoir les redevances ainsi fixées et, indépendamment de
tout autre recours, en poursuivre le recouvrement en justice.
|
Counterclaim
Copyright Act,
RSC 1985, c C-42
|
Interpretation
|
Définitions et dispositions interprétatives
|
|
Definitions
|
Définitions
|
|
2 In this Act,
|
2 Les
définitions qui suivent s’appliquent à la présente loi.
|
|
…
|
[…]
|
|
educational institution means
|
établissement d’enseignement :
|
|
(a) a non-profit institution licensed or recognized by or under an
Act of Parliament or the legislature of a province to provide pre-school,
elementary, secondary or post-secondary education,
|
a) Établissement sans but lucratif agréé aux
termes des lois fédérales ou provinciales pour dispenser de l’enseignement
aux niveaux préscolaire, élémentaire, secondaire ou postsecondaire, ou
reconnu comme tel;
|
|
(b) a non-profit institution that is directed or controlled by a
board of education regulated by or under an Act of the legislature of a
province and that provides continuing, professional or vocational education
or training,
|
b) établissement sans but lucratif placé
sous l’autorité d’un conseil scolaire régi par une loi provinciale et qui
dispense des cours d’éducation ou de formation permanente, technique ou
professionnelle;
|
|
(c) a department or agency of any order of government, or any
non-profit body, that controls or supervises education or training referred
to in paragraph (a) or (b), or
|
c) ministère ou organisme, quel que soit
l’ordre de gouvernement, ou entité sans but lucratif qui exerce une autorité
sur l’enseignement et la formation visés aux alinéas a) et b);
|
|
(d) any other non-profit institution prescribed by regulation; (établissement d’enseignement)
|
d) tout autre établissement sans but
lucratif visé par règlement. (educational
institution)
|
|
…
|
[…]
|
|
Idem
|
Idem
|
|
2.1 (2) The mere fact that a work is
included in a compilation does not increase, decrease or otherwise affect the
protection conferred by this Act in respect of the copyright in the work or
the moral rights in respect of the work.
|
2.1 (2)
L’incorporation d’une oeuvre dans une compilation ne modifie pas la protection
conférée par la présente loi à l’oeuvre au titre du droit d’auteur ou des
droits moraux.
|
|
…
|
[…]
|
|
Fair Dealing
|
Utilisation équitable
|
|
Research, private study, etc.
|
Étude privée, recherche, etc.
|
|
29 Fair dealing for the purpose of
research, private study, education, parody or satire does not infringe
copyright.
|
29
L’utilisation équitable d’une oeuvre ou de tout autre objet du droit d’auteur
aux fins d’étude privée, de recherche, d’éducation, de parodie ou de satire
ne constitue pas une violation du droit d’auteur.
|
|
Criticism or review
|
Critique et compte rendu
|
|
29.1 Fair dealing for the purpose of
criticism or review does not infringe copyright if the following are
mentioned:
|
29.1
L’utilisation équitable d’une oeuvre ou de tout autre objet du droit d’auteur
aux fins de critique ou de compte rendu ne constitue pas une violation du
droit d’auteur à la condition que soient mentionnés :
|
|
(a) the source; and
|
a) d’une part, la source;
|
|
(b) if given in the source, the name of the
|
b) d’autre part, si ces renseignements
figurent dans la source :
|
|
(i) author, in the case of a work,
|
(i) dans le cas d’une oeuvre, le nom de
l’auteur,
|
|
(ii) performer, in the case of a performer’s performance,
|
(ii) dans le cas d’une prestation, le nom de
l’artiste-interprète,
|
|
(iii) maker, in the case of a sound recording, or
|
(iii) dans le cas d’un enregistrement sonore,
le nom du producteur,
|
|
(iv) broadcaster, in the case of a communication signal.
|
(iv) dans le cas d’un signal de communication,
le nom du radiodiffuseur.
|
|
News reporting
|
Communication des nouvelles
|
|
29.2 Fair dealing for the purpose of
news reporting does not infringe copyright if the following are mentioned:
|
29.2
L’utilisation équitable d’une oeuvre ou de tout autre objet du droit d’auteur
pour la communication des nouvelles ne constitue pas une violation du droit
d’auteur à la condition que soient mentionnés :
|
|
(a) the source; and
|
a) d’une part, la source;
|
|
(b) if given in the source, the name of the
|
b) d’autre part, si ces renseignements
figurent dans la source :
|
|
(i) author, in the case of a work,
|
(i) dans le cas d’une oeuvre, le nom de
l’auteur,
|
|
(ii) performer, in the case of a performer’s performance,
|
(ii) dans le cas d’une prestation, le nom de
l’artiste-interprète,
|
|
(iii) maker, in the case of a sound recording, or
|
(iii) dans le cas d’un enregistrement sonore,
le nom du producteur,
|
|
(iv) broadcaster, in the case of a communication signal.
|
(iv) dans le cas d’un signal de communication,
le nom du radiodiffuseur.
|
|
…
|
[…]
|
|
Educational Institutions
|
Établissements d’enseignement
|
|
Reproduction for instruction
|
Reproduction à des fins pédagogiques
|
|
29.4 (1) It is not an infringement of
copyright for an educational institution or a person acting under its
authority for the purposes of education or training on its premises to reproduce
a work, or do any other necessary act, in order to display it.
|
29.4 (1) Ne constitue pas une violation du droit d’auteur le fait, pour un
établissement d’enseignement ou une personne agissant sous l’autorité de
celui-ci, de reproduire une oeuvre pour la présenter visuellement à des fins
pédagogiques et dans les locaux de l’établissement et d’accomplir tout autre
acte nécessaire pour la présenter à ces fins.
|
|
Reproduction for examinations, etc.
|
Questions d’examen
|
|
(2) It is not an infringement of copyright
for an educational institution or a person acting under its authority to
|
(2) Ne
constituent pas des violations du droit d’auteur, si elles sont faites par un
établissement d’enseignement ou une personne agissant sous l’autorité de
celui-ci dans le cadre d’un examen ou d’un contrôle :
|
|
(a) reproduce, translate or perform in public on the premises of the
educational institution, or
|
a) la reproduction, la traduction ou
l’exécution en public d’une oeuvre ou de tout autre objet du droit d’auteur
dans les locaux de l’établissement;
|
|
(b) communicate by telecommunication to the public situated on the
premises of the educational institution
a work or other subject-matter as required for a test or
examination.
|
b) la communication par télécommunication
d’une oeuvre ou de tout autre objet du droit d’auteur au public se trouvant
dans les locaux de l’établissement.
|
|
If work commercially available
|
Accessibilité sur le marché
|
|
(3) Except in the case of manual
reproduction, the exemption from copyright infringement provided by
subsections (1) and (2) does not apply if the work or other subject-matter is
commercially available, within the meaning of paragraph (a) of
the definition commercially available in section 2, in a medium that is
appropriate for the purposes referred to in those subsections.
|
(3)
Sauf cas de reproduction manuscrite, les exceptions prévues aux paragraphes
(1) et (2) ne s’appliquent pas si l’oeuvre ou l’autre objet du droit d’auteur
sont accessibles sur le marché — au sens de l’alinéa a) de la définition de
ce terme à l’article 2 — sur un support approprié, aux fins visées par ces
dispositions.
|
|
Performances
|
Représentations
|
|
29.5 It is not an infringement of
copyright for an educational institution or a person acting under its
authority to do the following acts if they are done on the premises of an
educational institution for educational or training purposes and not for
profit, before an audience consisting primarily of students of the
educational institution, instructors acting under the authority of the
educational institution or any person who is directly responsible for setting
a curriculum for the educational institution:
|
29.5 Ne
constituent pas des violations du droit d’auteur les actes ci-après, s’ils
sont accomplis par un établissement d’enseignement ou une personne agissant
sous l’autorité de celui-ci, dans les locaux de celui-ci, à des fins
pédagogiques et non en vue d’un profit, devant un auditoire formé
principalement d’élèves de l’établissement, d’enseignants agissant sous
l’autorité de l’établissement ou d’autres personnes qui sont directement
responsables de programmes d’études pour cet établissement :
|
|
(a) the live performance in public, primarily by students of the
educational institution, of a work;
|
a) l’exécution en direct et en public d’une
oeuvre, principalement par des élèves de l’établissement;
|
|
(b) the performance in public of a sound recording, or of a work or
performer’s performance that is embodied in a sound recording, as long as the
sound recording is not an infringing copy or the person responsible for the
performance has no reasonable grounds to believe that it is an infringing
copy;
|
b) l’exécution en public tant de
l’enregistrement sonore que de l’oeuvre ou de la prestation qui le
constituent, à condition que l’enregistrement ne soit pas un exemplaire
contrefait ou que la personne qui l’exécute n’ait aucun motif raisonnable de
croire qu’il s’agit d’un exemplaire contrefait;
|
|
(c) the performance in public of a work or other subject-matter at
the time of its communication to the public by telecommunication; and
|
c) l’exécution en public d’une oeuvre ou de
tout autre objet du droit d’auteur lors de leur communication au public par
télécommunication;
|
|
(d) the performance in public of a cinematographic work, as long as
the work is not an infringing copy or the person responsible for the
performance has no reasonable grounds to believe that it is an infringing
copy.
|
d) l’exécution en public d’une oeuvre
cinématographique, à condition que l’oeuvre ne soit pas un exemplaire
contrefait ou que la personne qui l’exécute n’ait aucun motif raisonnable de
croire qu’il s’agit d’un exemplaire contrefait.
|
|
News and commentary
|
Actualités et commentaires
|
|
29.6 (1) It is not an infringement of
copyright for an educational institution or a person acting under its
authority to
|
29.6 (1) Les actes ci-après ne constituent pas des violations du droit
d’auteur s’ils sont accomplis par un établissement d’enseignement ou une
personne agissant sous l’autorité de celui-ci :
|
|
(a) make, at the time of its communication to the public by
telecommunication, a single copy of a news program or a news commentary
program, excluding documentaries, for the purposes of performing the copy for
the students of the educational institution for educational or training
purposes; and
|
a) la reproduction à des fins pédagogiques,
en un seul exemplaire, d’émissions d’actualités ou de commentaires
d’actualités, à l’exclusion des documentaires, lors de leur communication au
public par télécommunication en vue de leur présentation aux élèves de
l’établissement;
|
|
(b) perform the copy in public before an audience consisting
primarily of students of the educational institution on its premises for
educational or training purposes.
|
b) les exécutions en public de l’exemplaire
devant un auditoire formé principalement d’élèves de l’établissement dans les
locaux de l’établissement et à des fins pédagogiques.
|
|
Reproduction of broadcast
|
Reproduction d’émissions
|
|
29.7 (1) Subject to subsection (2) and
section 29.9, it is not an infringement of copyright for an educational
institution or a person acting under its authority to
|
29.7 (1) Sous réserve du paragraphe (2) et de l’article 29.9, les actes
ci-après ne constituent pas des violations du droit d’auteur s’ils sont
accomplis par un établissement d’enseignement ou une personne agissant sous
l’autorité de celui-ci :
|
|
(a) make a single copy of a work or other subject-matter at the time
that it is communicated to the public by telecommunication; and
|
a) la reproduction à des fins pédagogiques,
en un seul exemplaire, d’une oeuvre ou de tout autre objet du droit d’auteur
lors de leur communication au public par télécommunication;
|
|
(b) keep the copy for up to thirty days to decide whether to perform
the copy for educational or training purposes.
|
b) la conservation de l’exemplaire pour une
période maximale de trente jours afin d’en déterminer la valeur du point de
vue pédagogique.
|
|
Royalties for reproduction
|
Paiement des redevances ou destruction
|
|
(2) An educational institution that
has not destroyed the copy by the expiration of the thirty days infringes
copyright in the work or other subject-matter unless it pays any royalties,
and complies with any terms and conditions, fixed under this Act for the
making of the copy.
|
(2)
L’établissement d’enseignement qui n’a pas détruit l’exemplaire à
l’expiration des trente jours viole le droit d’auteur s’il n’acquitte pas les
redevances ni ne respecte les modalités fixées sous le régime de la présente
loi pour la reproduction.
|
|
Royalties for performance
|
Exécution en public
|
|
(3) It is not an infringement of
copyright for the educational institution or a person acting under its
authority to perform the copy in public for educational or training purposes
on the premises of the educational institution before an audience consisting primarily
of students of the educational institution if the educational institution
pays the royalties and complies with any terms and conditions fixed under
this Act for the performance in public.
|
(3)
L’exécution en public, devant un auditoire formé principalement d’élèves de
l’établissement, de l’exemplaire dans les locaux de l’établissement et à des
fins pédagogiques, par l’établissement ou une personne agissant sous
l’autorité de celui-ci, ne constitue pas une violation du droit d’auteur si
l’établissement acquitte les redevances et respecte les modalités fixées sous
le régime de la présente loi pour l’exécution en public.
|
|
Unlawful reception
|
Réception illicite
|
|
29.8 The exceptions to infringement of
copyright provided for under sections 29.5 to 29.7 do not apply where the
communication to the public by telecommunication was received by unlawful
means.
|
29.8
Les exceptions prévues aux articles 29.5 à 29.7 ne s’appliquent pas si la
communication au public par télécommunication a été captée par des moyens
illicites.
|
|
Records and marking
|
Obligations relatives à l’étiquetage
|
|
29.9 (1) Where an educational
institution or person acting under its authority
|
29.9 (1) L’établissement d’enseignement est tenu de consigner les
renseignements prévus par règlement, selon les modalités réglementaires,
quant aux reproductions et destructions qu’il fait et aux exécutions en
public pour lesquelles des redevances doivent être acquittées sous le régime
de la présente loi, et d’étiqueter les exemplaires selon les modalités réglementaires,
dans les cas suivants :
|
|
(a) [Repealed, 2012, c. 20, s. 26]
|
a) [Abrogé, 2012, ch. 20, art. 26]
|
|
(b) makes a copy of a work or other subject-matter communicated to
the public by telecommunication and performs it pursuant to section 29.7,
the educational institution shall keep a record of the information
prescribed by regulation in relation to the making of the copy, the
destruction of it or any performance in public of it for which royalties are
payable under this Act and shall, in addition, mark the copy in the manner
prescribed by regulation.
|
b) reproduction d’une oeuvre ou de tout
autre objet du droit d’auteur lors de sa communication au public par
télécommunication et exécution de l’exemplaire, dans le cadre de l’article
29.7.
|
|
Regulations
|
Règlements
|
|
(2) The Board may, with the approval
of the Governor in Council, make regulations
|
(2) La
Commission peut, par règlement et avec l’approbation du gouverneur en
conseil, préciser :
|
|
(a) prescribing the information in relation to the making,
destruction, performance and marking of copies that must be kept under
subsection (1),
|
a) les renseignements relatifs aux
reproductions, destructions et exécutions en public visées au paragraphe (1)
que doivent consigner les établissements d’enseignement et qui doivent
figurer sur les étiquettes;
|
|
(b) prescribing the manner and form in which records referred to in
that subsection must be kept and copies destroyed or marked, and
|
b) les modalités de consignation de ces
renseignements, et d’étiquetage et de destruction des exemplaires;
|
|
(c) respecting the sending of information to collective societies
referred to in section 71.
|
c) les modalités de transmission de ces
renseignements aux sociétés de gestion visées à l’article 71.
|
|
Literary collections
|
Recueils
|
|
30 The publication in a collection,
mainly composed of non-copyright matter, intended for the use of educational
institutions, and so described in the title and in any advertisements issued
by the publisher, of short passages from published literary works in which copyright
subsists and not themselves published for the use of educational
institutions, does not infringe copyright in those published literary works
if
|
30 La
publication de courts extraits d’oeuvres littéraires encore protégées,
publiées et non destinées elles-mêmes à l’usage des établissements
d’enseignement, dans un recueil qui est composé principalement de matières
non protégées, préparé pour être utilisé dans les établissements
d’enseignement et désigné comme tel dans le titre et dans les annonces faites
par l’éditeur ne constitue pas une violation du droit d’auteur sur ces
oeuvres littéraires publiées à condition que :
|
|
(a) not more than two passages from
works by the same author are published by the same publisher within five
years;
|
a) le même éditeur ne publie pas plus de
deux passages tirés des oeuvres du même auteur dans l’espace de cinq ans;
|
|
(b) the source from which the passages
are taken is acknowledged; and
|
b) la source de l’emprunt soit indiquée;
|
|
(c) the name of the author, if given
in the source, is mentioned.
|
c) le nom de l’auteur, s’il figure dans la
source, soit mentionné.
|
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