A university can refuse a collective copyright licence without automatically owing money under that licence. That doesn't mean it can copy whatever it likes. The distinction is at the centre of York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32, a decision that matters to people who create, publish and use written work, whether they're selling books, managing educational collections or licensing original material.
York had for years operated under an agreement with Access Copyright, a society that administered copying rights for authors and publishers. The arrangement allowed reproduction of works within its repertoire in exchange for royalties. When renewal negotiations stalled, Access Copyright obtained an interim tariff from the Copyright Board of Canada. York initially paid under that arrangement, but stopped in 2011 and maintained that the tariff wasn't enforceable against it. It also argued that its educational copying could fall within the Copyright Act's fair dealing provisions.
Access Copyright sought to enforce the interim tariff. The proceedings moved through the Federal Court and Federal Court of Appeal, with questions about whether York had to pay, how copyright licences work and whether copying for teaching could be fair dealing. The Supreme Court ultimately addressed an important distinction that can be lost when copyright licensing is treated as little more than an invoice.
The Court held unanimously that the tariff wasn't compulsory for York. The law governing copyright collectives provides a way to administer rights and to protect users through approved licence terms and rates. It doesn't permit a collective society to force an unwilling institution to accept a licence. If a user voluntarily accepts a licence and fails to pay, that can create an obligation under the licence. Where there is no accepted licence, however, a collective can't treat the published tariff as a compulsory debt merely because the institution may be using protected material.
That conclusion shouldn't be mistaken for permission to use copyrighted works without limits. Copyright infringement is a distinct question, requiring attention to what was reproduced, who owns the relevant rights and whether consent or a statutory exception applies. A copyright owner may bring a proper infringement claim against someone who reproduces protected material without authorization. But Access Copyright's proceeding wasn't that kind of claim, and the relevant copyright owners weren't before the Court in a way that permitted a definitive determination of York's fair dealing practices.
The Supreme Court accordingly dismissed both appeals. The approved tariff could not be imposed on York as a mandatory licence, and the Court declined to resolve the broader fair dealing argument. That restraint is as important as the tariff ruling itself. Neither educational institutions nor publishers should cite this case as though the Court decided that all educational copying is lawful, or that fair dealing was unavailable. Those questions were not decided in this litigation.
For authors and smaller publishers, the practical lesson is that the mechanism for enforcing a right matters. Collective administration can be an important way for creators to receive compensation without negotiating every use themselves, but an approved collective rate isn't the same as an infringement judgment. For colleges, libraries and other users, the decision clarifies that a licence is a choice, while copyright obligations may continue to exist independently of it. Both sides need to understand the actual rights involved rather than rely on the apparent simplicity of an approved tariff.
There is a larger theme here, too. Creative work benefits from being taught, discussed, shared and interpreted in new settings. Those forms of engagement don't erase the rights of the people who produced it, and protecting the rights doesn't mean every person who wishes to read or learn must accept whatever licence a collective offers. The law distinguishes ownership, copying, permission and exceptions precisely because they don't always point in the same direction.
Source limitation: This commentary is based on the Supreme Court of Canada's official Case in Brief, a staff prepared summary of the decision. The Court expressly states that these summaries aren't part of the reasons for judgment. Anyone relying on the judgment for legal purposes should read the full reasons.