Canadian Copyright Licensing Agency v. York University

Canadian Copyright Licensing Agency v. York University
Court (s) Database
Federal Court Decisions
Date
2017-07-12
Neutral citation
2017 FC 669
File numbers
T-578-13
Notes
A correction was made on June 7, 2018.
Reported Decision
Decision Content
Date: 20170712
Docket: T-578-13
Citation: 2017 FC 669
BETWEEN:
THE CANADIAN COPYRIGHT LICENSING AGENCY ("ACCESS COPYRIGHT")
Plaintiff/
Defendant by Counterclaim
and
YORK UNIVERSITY
Defendant/
Plaintiff by Counterclaim
REASONS FOR JUDGMENT
TABLE OF CONTENTS
SECTIONS:
PARAGRAPH #
I. Introduction
[1] - [4]
II. Issues
[5] - [6]
III. Summary of Conclusions
[7]
A. Interim Tariff – Main Action
[7] - [13]
B. Fair Dealing – Counterclaim
[14] - [29]
IV. The Parties
[30]
A. Access Copyright
[30] - [35]
B. York University
[36] - [42]
V. Subject Matter
[43] - [46]
A. Coursepacks
[47] - [52]
B. Learning Management Systems
[53] - [62]
VI. Summary of Key Lay Witnesses
[63]
A. Plaintiff’s Lay Witnesses
[64]
(1) Roanie Levy
[64]
(2) Matthew Williams
[65]
(3) Michael Andrews
[66] - [68]
(4) Glenn Rollans
[69]
(5) David Swail
[70]
(6) Writers’ Union
[71]
B. Defendant’s Lay Witnesses
[72]
(1) Patricia Lynch
[73] - [79]
(2) Professors and Administrators
[80] - [82]
VII. Summary of Key Expert Evidence
[83]
A. General
[83] - [86]
B. Sampling Issues
[87] - [94]
C. Plaintiff’s Experts
[95]
(1) Benoît Gauthier
[95] - [105]
(2) Michael Dobner
[106] - [119]
D. Defendant’s Experts
[120]
(1) Dr. Piotr Wilk
[121] - [128]
(2) A. Scott Davidson
[129] - [135]
(3) Dustin Chodorowicz
[136] - [143]
E. Survey Evidence
[144] - [151]
VII. Key Events – Main Action
[152]
A. Keele Copy Centre
[153] - [161]
B. Interim Tariff Events
[162] - [172]
IX. The Fair Dealing Guidelines Story/Key Events in the Counterclaim
[173] - [179]
A. York - Publication/Copy Distribution
[180] - [187]
X. Legal Conclusions
[188]
A. Main Action – Was the Interim Tariff enforceable against York?
[188]
(1) Preliminary
[188] - [193]
(2) Scheme of the Act
[194] - [204]
(3) Statutory Interpretation
[205] - [220]
(4) Status of Interim Tariff
[221] - [245]
(5) Conclusion – Main Action
[246] - [248]
B. Counterclaim
[249]
(1) General
[249] - [263]
(2) The Fairness Factors
[264]
(a) The Purpose of the Dealing
[264] - [275]
(b) Character of Dealing
[276] - [289]
(c) Amount of the Dealing
[290]
(i) Quantitative
[291] - [295]
(ii) Qualitative
[296] - [317]
(iii) Conclusion on the Amount of the Dealing
[318]
(d) Alternatives to the Dealing
[319] - [331]
(e) Nature of the Work
[332] - [338]
(f) Effect of the Dealing
[339] - [355]
(3) Conclusion
[356] - [357]
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 23, 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 newspaper article or page;
e) an entire single poem or musical score from a Work containing other poems or musical scores; or
f) 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:
Main Action
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.)
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:
66.51 The Board may, on application, make an interim decision.
66.51 La Commission peut, sur demande, rendre des décisions provisoires.
[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:
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.
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.
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.
[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, c