Author’s note: The Access Copyright v. York University lawsuit was the subject of the very first post I ever made. In fact, it was the impetus for creating this blog. After four years, the lawsuit has been decided (at least in part). Here is my analysis.
On July 12, 2017, the Federal Court of Canada handed down its long-awaited decision in Access Copyright’s lawsuit against York University (York), originally filed on April 13, 2013. The suit related to York’s copyright policy and whether their fair dealing guidelines accurately reflected the test set out by the Supreme Court. A summary of Access Copyright’s claims can be found here.
The result was a complete loss for York on all points, and an order to pay retroactive royalties as set by the Copyright Board in its Interim Tariff. However, as the decision is likely to be appealed, I’d like to discuss here what will we be (or should be) the main points of legal contention before the higher court. I will focus here on the fair dealing analysis (starting at para. 249) rather than the mandatory tariff, which is an issue discussed in detail by Howard Knopf and Ariel Katz.