On June 1, 2014, Université Laval in Quebec City introduced a policy on the use of third-party works by its staff. The policy unilaterally defined the concept of a “short excerpt” and authorized employees to reproduce and use those “short excerpts” from works without getting permission from the authors and publishers and without paying any royalties.
On an annual basis, Université Laval reproduces more than 11 million pages from over 7,000 works and includes them in coursepacks sold to students or made available to them online. Until June 2014, the university had operated under a comprehensive reproduction rights licence from Copibec and, like all Quebec universities, payed a predetermined royalty per student.
Laval is the only educational institution in Quebec to have taken its own approach. All the other institutions have obtained comprehensive licences from Copibec covering the use of copyright-protected content and have agreed to pay the applicable royalties to authors and publishers. Those licences were renewed in 2017.
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Class actions are lawsuits intended to facilitate access to justice, preserve judicial resources and sanction wrongful acts. They enable one party (called the representative) to launch judicial proceedings on behalf of multiple parties (called the class) who are faced with a situation similar to the representative’s (called the common question).
The proceedings are long and complex. To help you understand the class action undertaken by Copibec, this section gives an overview of the major steps involved.
Class actions must first be authorized by a judge. An application for authorization (or leave) to institute a class action is filed with the court by the class action’s representative.
In Quebec, at this stage the judge considers whether the following criteria have been met:
- The claims of the members of the class raise identical, similar or related issues of law or fact
- The facts alleged appear to justify the conclusions sought
- The composition of the class makes it difficult or impracticable to apply the rules for mandates to take part in judicial proceedings on behalf of others or for consolidation of proceedings
- The representative is in a position to properly represent the class members
The representative has to demonstrate that the case meets the criteria allowing the class action to be launched but the threshold for that requirement is not high. It is not necessary at this point for the representative to prove that the case will ultimately be won.
If the court does not authorize the class action, the representative can choose to give up the lawsuit (in which case the class members can always decide to launch their own proceedings individually) or it can appeal the ruling.
If the class action is allowed to proceed, the representative files an originating application to have the court hear the case (i.e. decide the case “on the merits”).
Notice to members
After the class action has been authorized and the originating application has been filed, one of the judge’s first decisions is about the content and procedures for issuing a notice to the class members.
The purpose of the notice is to inform anyone who is included in the class that a class action has been authorized. The notice explains the issues to be dealt with and the conclusions sought in relation to those issues. Since the final judgment will be binding on all the class members, the notice states that class members have the right to opt out of the class. In general, only the people who want to launch a lawsuit themselves would consider opting out.
Hearing and judgment on the merits
During the hearing, each party gives the arguments supporting its claims. The court examines and analyzes those arguments before rendering its decision that determines the outcome of the case and, if applicable, the amounts awarded to cover the damages. The judgment is binding on everyone in the class that was defined at the authorization stage.
If either of the parties considers that the judge committed an error, that party can appeal the judgment to a higher court.
This step takes place only if the court renders a decision in favour of the class representative.
The amount payable to each class member under the judgment on the merits is determined at this stage. If all the class members did not suffer the same harm, the amount of damages payable will vary from person to person. In some specific situations, determining the amount of damages may require a series of mini-trials.
For more information about class actions in Quebec, you can refer to these sites: https://www.educaloi.qc.ca/en/capsules/what-class-action
http://www.faac.justice.gouv.qc.ca/# (in French)
https://services12.justice.gouv.qc.ca/RRC/RRC_Public/Demande/DemandeDetail.aspx?DemRecID=905 (in French)
By launching a class action, Copibec becomes the representative designated by the court and can defend the rights of a greater number of copyright owners, including those whose rights are not already managed by Copibec. During this legal proceeding, Copibec will also be representing authors whose moral rights have been infringed.
A class action is therefore the best way to defend all the interests of the largest number of copyright owners.
2014: Dispute begins
While Copibec was negotiating to renew its agreement with Quebec universities, Université Laval decided instead to go out on its own and adopt an institutional policy authorizing its staff to reproduce excerpts without the creators’ permission and without paying royalties.
During this period, Copibec and the Quebec universities held various negotiation meetings to reach an agreement on renewing the comprehensive reproduction rights licences for Quebec universities. Université Laval was invited to attend but refused to join the other universities. In March 2014, it informed Copibec that it did not want to renew its licence.
Even though Copibec and the other Quebec universities had agreed to renew their comprehensive licences, Université Laval adopted its own policy and guidelines concerning the use of third-party works for teaching, learning, research and private study purposes (“Politique et directives relatives à l’utilisation de l’œuvre d’autrui aux fins des activités d’enseignement, d’apprentissage, de recherche et d’étude privée à l’Université Laval”) and its regulation on course material (“Règlement sur le matériel de cours à l’Université Laval”) without having entered into discussions with Copibec at any point.
The university’s policy unilaterally defined what was considered a “short excerpt” and authorized the university and its staff to reproduce and use those excerpts from works without getting permission from or making payments to the authors and publishers. The policy stated that a “short excerpt” represented up to 10% or an entire chapter of a work. Employees were also told to apply an interpretation that allowed the most extensive possible use.
After its policy came into effect on June 1, Université Laval confirmed to Copibec by mail on June 9 that it would not renew its reproduction rights licence.
From that point on, the university stopped requesting permission from authors and publishers through Copibec or by any other means and stopped paying the applicable royalties on the copies it made, whether they were inserted into coursepacks sold to students, made available to students via intranet or otherwise distributed.
The university therefore became, and still remains, the only educational institution in Quebec to take this approach.
Copibec and the representatives for authors (such as poet Guy Marchamps and novelist Jean-Frédéric Messier), publishers (such as Éditions Leméac and Presses de l'Université du Québec) and copyright collectives filed an application with the Quebec Superior Court for authorization to institute a class action.
In addition to an order forcing Université Laval to stop its illegal reproduction activities, the representatives asked for approximately $4 million in material, moral and exemplary damages per year on behalf of all persons whose copyright and moral rights had been infringed.
Since the costs associated with the class action were expected to be substantial, Copibec also requested financial assistance from the Quebec class action assistance fund (Fonds d’aide aux actions collectives), which agreed to provide financial support for the action. The fund confirmed its financial assistance for the appeal and hearing stages as well.
2015: Public debate and Superior Court hearing
Authors and professors published open letters and the parties appeared before the judge for the first time to make their points about authorizing the class action.
On March 10, 2015, a group of 34 Quebec authors, including Michel Tremblay, Marie Laberge and Yann Martel, co-signed an open letter that was published in the Montreal daily Le Devoir in which they criticized Université Laval for failing to pay fair compensation to content creators.
Denis Brière, Université Laval’s Rector, responded publicly by referring to the more than $20 million in budget cuts as the justification for not obtaining a reproduction rights licence. He failed to mention a number of relevant facts, giving an inaccurate portrayal of the situation.
On campus, differing opinions were voiced on the legitimacy of the university’s policy and the institution’s refusal to renew its licence. Professors Florence Piron and Georges Azzaria published open letters in Le Devoir to explain their views.
The parties appeared before Justice Michel Beaupré of the Quebec Superior Court to give their arguments on the application for authorization to launch the class action.
2016: Authorization denied, appeal and discussions in National Assembly
The Superior Court rejected the application for authorization to launch a class action but Copibec appealed the judgment. The issue of royalty payments by Université Laval was raised in Quebec’s National Assembly.
Justice Michel Beaupré of the Quebec Superior Court refused to authorize Copibec’s class action.
In his view, the copyright infringement issues would require too much individualized study of the circumstances specific to each author and publisher. He added that even though Copibec had cited other class actions authorized on that subject, they were not relevant to Copibec’s class action. He also deemed that Copibec could not represent the class members because they were members of the organizations that made up Copibec rather than being members of Copibec itself.
Nevertheless, the judge made it clear that he did endorse the university's claims on the merits of the dispute.
Forging ahead despite the disappointing decision from the Superior Court, Copibec asked the Quebec Court of Appeal to quash Justice Beaupré’s ruling and authorize the class action.
In Copibec’s opinion, the decision was unfounded and applied an overly restrictive interpretation of the authorization criteria for a class action, in contradiction to the teachings of the Supreme Court.
Based on the logic of Justice Beaupré’s decision, thousands of Canadian and foreign authors and publishers would have to file individual lawsuits against Université Laval to make personal claims for the unauthorized, unpaid reproduction of their works. The amount of those claims would often be small and very much out of proportion to the major costs involved in launching a lawsuit.
Copibec believed the judge’s logic went against the class action’s goals of facilitating access to justice, preserving judicial resources and sanctioning wrongful acts.
Following Copibec’s motion for appeal, Université Laval filed a motion with the Quebec Court of Appeal to have Copibec’s appeal denied without any examination of the merits. The university was attempting to block the appeal procedure before Copibec could give the Court the reasons supporting its motion for appeal.
The Court of Appeal rejected the university’s motion after reviewing the file and without holding a hearing. Copibec was therefore able to continue with the procedure to appeal Justice Beaupré’s decision.
Justices Gagnon, Bélanger and Mainville of the Quebec Court of Appeal heard arguments from Copibec and Université Laval about authorizing the class action.
Copibec was supported by a number of copyright owners who were present in the courtroom, including Claude Robinson.
On December 9 in Quebec’s National Assembly, Claire Samson, MNA for Iberville and member of the Coalition Avenir Québec party, asked Hélène David, Minister of Higher Education and former culture minister, whether she would send a clear message to Quebec universities to ensure that they would respect creators and pay the royalties owed to them. Ms. David said that Université Laval was doing things that were comparable to what Copibec did, was respecting copyright and was acting in compliance with the federal government’s copyright principle.
The same day, the Union des écrivaines et des écrivains québécois and the Association nationale des éditeurs de livres published a joint news release criticising the minister’s remarks. The two groups said they were very concerned that the minister not only affirmed that Université Laval was respecting copyright despite the lawsuit between it and Copibec but that she also called into question Copibec’s usefulness.
For its part, Copibec put out a news release stating that the minister’s remarks showed a very poor understanding of the role of copyright collectives as well as copyright issues in the university sector. The release noted that Copibec, as the representative for authors, creators and publishers, was suing Université Laval, that no courts had yet ruled on the validity of the policy adopted by the university and that York University in Ontario had been sued in Federal Court for similar reasons by Access Copyright, Copibec’s sister copyright collective operating in the rest of Canada.
Copibec asked for a meeting with Ms. David to give her a complete briefing on the Université Laval situation. The minister, who had indicated that she had checked her information with the university, did not agree to meet with Copibec and the authors’ and publishers’ representatives.
York University decision
Update on the lawsuit between Access Copyright and York University: on July 12, 2017, the Federal Court delivered its decision in favour of Access Copyright and ruled that York University’s guidelines (which were very similar – possibly identical – to Université Laval’s) did not meet the requirements of the fair dealing exception.
WINTER 2017: Class action authorized
The Copibec class action was authorized by the Quebec Court of Appeal just before Université Laval kicked off its campaign to elect a new Rector.
To ensure transparency and due diligence and meet its obligations towards all copyright owners, Copibec sent a letter to the publications connected with Université Laval, including Presses de l’Université Laval (PUL), asking them to clarify their relationships with the university.
Copibec’s intent was to make sure that it didn’t inadvertently pay royalties to Université Laval through related entities for copies made by other users that would be similar to the copies that the university was refusing to pay.
Once the publications had clarified their relationships with Université Laval and Copibec had determined that there did not seem to be a connection, the royalties due were paid.
The Quebec Court of Appeal unanimously quashed the judgment rendered on February 26, 2016 by the Honourable Justice Beaupré of the Quebec Superior Court.
By doing so, the Court authorized the class action undertaken by Copibec and the representatives of authors, publishers and copyright collectives against Université Laval on behalf of all authors and publishers in Quebec and elsewhere.
In outlining its reasons, the Court stated that “the class action is designed to facilitate authors' access to justice while preserving judicial resources and, where appropriate, to effectively sanction acts that would otherwise remain protected from judicial intervention because of the low level of injury when assessed on an individual basis. In this sense, the class action contemplated by Copibec meets these overriding considerations.” (par. 86)
Three candidates were running to become Université Laval’s new Rector:
- Éric Beauce, Executive Vice-Rector and candidate supported by outgoing rector Denis Brière
- Michel Gendron, Dean of the faculty of business administration
- Sophie D’Amours, ex-Vice-Rector, Research
Copibec filed its originating application to have the Quebec Superior Court consider the merits of the case.
SPRING 2017: Meetings, election and designation of judge
Copibec met with student and professor groups, Université Laval elected its new Rector and the Superior Court named the judge who will consider the merits of the case.
Considering it important for the student and professor communities at Université Laval to have access to reliable information about the class action’s legality and legitimacy, Copibec proposed a meeting with the university professors’ union and the main student associations so they could gain a better understanding of the lawsuit against the university.
Those groups and the people they represent are stakeholders in the lawsuit. Approximately 400 active or retired Université Laval professors and instructors periodically receive royalties from Copibec to cover reproductions of their works in Canadian and foreign institutions. Students also have a clear interest in content access conditions because some of them already benefit or will benefit from copyright.
Université Laval’s electoral colleges elected Sophie D’Amours as Rector to replace Denis Brière.
Ms. D’Amours took on her new position on June 1, 2017.
The Honourable Justice Simon Hébert was designated by the Chief Justice of the Superior Court to hear the case on the merits.
FALL 2017: Notice published and motion for stay denied
The notice approved by the Court in August 2017 was published by Copibec in Le Monde, Le Devoir and The Gazette newspapers and online in ActuaLitté. It gave the class members the details of the class action and explained what to do if they wanted to opt out.
About a dozen author and publisher associations and reproduction rights organizations around the world also posted the notice on their websites and social media.
On October 16, Université Laval asked the Court to stay the proceedings, citing the fact that the Federal Court of Appeal would be examining the fair dealing defence in the York University v. Access Copyright case (see details under December 2016 above). Laval argued that its policy on the use of third-party works was similar to York’s policy and that the appeal court’s decision in that case could impact the fair dealing analysis in the class action. Copibec opposed the stay of proceedings because the motion was not based on serious grounds.
Justice Hébert ruled in favour of Copibec and confirmed that there were no serious grounds to justify staying the class action proceedings.
To determine which works had been reproduced by Université Laval and which copyright owners might be entitled to compensation, Copibec made a proposal to have a joint expert appraisal done as a neutral analysis. A specialized firm submitted an initial bid to take on the project for $2.5 million.
Winter and spring 2018
The steps relating to the merits of the case were undertaken.
With the help of a research assistant, we analyzed the coursebooks in our possession to identify possible infringements of copyright owners’ patrimonial and moral rights. We then asked various copyright owners to complete sworn statements that could be used as evidence for the hearing.
During this hearing, the Honorable Justice Hébert approved the case protocol that the parties had agreed on. The judge also informed the parties that the case would have to be ready (i.e. all procedures completed) by the end of October 2018 so that the Court could hear the merits of the case in 2019-2020.
In addition, during that hearing, the judge heard each party’s arguments concerning applications for orders to have expert appraisals done and the evidence preserved. Those applications had been submitted by Copibec on January 23, 2018. No decision had been made in that respect by the spring of 2018.
The Fonds d’aide aux actions collectives (Quebec class action assistance fund) granted additional assistance to pay for Copibec’s legal counsel at the substantive stage as well as the cost of publishing the notices and the fees for experts and a research assistant to do a preliminary coursebook analysis.
In the spring, we were informed that Jean-Frédéric Messier, who had been designated the second representative for the class action, was no longer able to fulfill that role. Author Stanley Péan indicated that he could take over from Mr. Messier. On March 23, 2018, Copibec filed a representative substitution application with the Court; Université Laval did not oppose it.
To prepare its defence, Université Laval had asked Copibec to provide various documents, including lists of the authors and publishers it represented. After weeks of work, we sent three boxes of documents to the university’s legal team.
Copibec also filed an application for a confidentiality order, which the university’s legal team did not oppose, in order to protect certain confidential documents provided by copyright owners.
On April 17 and 18, the university’s legal team conducted out-of-court examinations before submitting their written defence. Frédérique Couette, Copibec’s Executive Director, and Guy Marchamps, one of the class representative, were examined.
During that period, we provided the university’s legal team with two expert reports, one by linguist Danielle Forget and the other by economist Claude Martin, on behalf of the class.
Following their discussions, the parties reached an out-of-court settlement agreement, which remained subject to Court approval.
Frédérique Couette, Copibec’s Executive Director, Annie Massicotte, Copibec’s Legal Counsel, and Daniel Payette, legal counsel for the representatives, went to Université Laval to initiate negotiations for a settlement. The parties reached an agreement in the days that followed.
On June 19, 2018, Copibec and Université Laval published a joint news release announcing that a settlement agreement had been reached between the two parties. To avoid substantial additional fees and expenses for everyone involved, the parties did not make any admissions whatsoever in reaching this out-of-court settlement agreement. They preferred to devote their efforts and resources to defending copyright as it related to their respective missions.
The Honorable Justice Simon Hébert agreed to allow Stanley Péan to substitute as one of the class representatives and approved the modification of the class so that its closing date would be May 31, 2018. He also approved the content of the settlement notice that would be published in newspapers before the settlement agreement is homologated.
The settlement notices were published in the media and by Copibec partners. The members of the class who wanted to opt out of the class action had until the end of August to notify the court registry.
Both parties and their representatives went to the Quebec City courthouse to submit their settlement agreement to Justice Hébert and request homologation (approval). At that time, members of the class also had the opportunity to object to the settlement in court.
Justice Simon Hébert announced his decision: the out-of-court settlement agreement signed in June 2018 was homologated. Copibec was appointed to administer the settlement. The parties were authorized to proceed with the subsequent steps:
- Collect the amounts payable by the university under the agreement
- Analyze the previous copy logs that will be used as the basis for royalty payments to each copyright owner in Quebec and elsewhere
- Calculate the damages for the alleged infringement of authors’ moral rights
The analysis of the user log entries was completed. Copibec could then move on to the next step in the settlement process: paying royalties and moral rights damages to the copyright owners concerned. The cheques were issued in January 2020.
Judgment dismissing the authorization (February 2016) French version
Appeal judgment on authorization (February 2017)
Judgment on the Notice and Amendment (July 2017) French version
Original Process (amended) (August 2017) French version
Notice to members (short)
Notice to members (complete)
Opt out Form (deadline: October 16 2017)
Settlement notice (June 2018)
Settlement agreement (June 2018)
Opt out Form (deadline: September 7 2018)