Canada’s supreme court affirms that tariffs certified by the copyright board are not mandatory

By Jaimie Bordman

Canada’s Supreme Court has recently affirmed that tariffs for dealing with copyright-protected works levied by copyright collective societies and certified by the Copyright Board, are optional. Users of copyright-protected material are free to opt out of said tariffs and obtain appropriate licenses by other means, if desired.

The underlying dispute involved York University; whose professors make huge volumes of copies from copyright protected works pursuant to instructing students. The University had obtained a license for such copying via Access Copyright, a collective society representing the owners of copyright in most (if not all) of the written works that York professors were reproducing in the course of teaching their students.

The parties were negotiating to renew York’s license for reproducing the written works. When negotiations broke down, Access Copyright sought certification of an interim tariff from the Copyright Board of Canada, which would have the effect of unilaterally setting the royalty rate for the license at the current rate until negotiations could be concluded. The Copyright Board granted the request for an interim tariff, but after some time York University declined to take license rights from Access Copyright altogether and stopped paying the tariff.

York’s refusal to take a license from Access Copyright and pay the interim tariff gave rise to the central question in this matter: when a tariff is certified by the Copyright Board, setting royalty rates for a license to use copyright works, is it mandatory that anyone using the works in the manner covered by the tariff pay the tariff rates to obtain a license? Access Copyright maintained that the tariff was indeed mandatory and sought to enforce the tariff in Federal Court. The Federal Court sided with Access Copyright, but the Federal Court of Appeal disagreed, finding that Copyright Board approved tariffs are voluntary for those using the copyright material covered by the tariff.

The Supreme Court held that the interim tariff from the Copyright Board was optional and was not enforceable against York University. The Copyright Act does not contain any language that clearly, distinctly establishes a duty to pay a copyright collective society for a license under copyright pursuant to a tariff certified by the Copyright Board. Accordingly, any user of copyright-protected material is free to obtain a license in whatever manner it desires. Users are also free to determine whether they believe a license is required at all, or whether their activities fall under the “fair dealing” exception to copyright infringement (subject to the risk of a copyright infringement suit from the copyright owner, of course).

The Supreme Court’s decision is York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32, and can be found at this link: