York University v. Access Copyright, 2021 SCC 32

The Supreme Court decision in the Access Copyright / York case has been released. It can be found at Lexum.

As I had suspected, the Court dismissed the appeals of both parties and upheld the verdicts of the Federal Court of Appeal ⁠–⁠ namely, that the tariff proposed by Access Copyright and set by the Copyright Board is not automatically binding on all institutional users of copyrighted material, and thus, since the tariff is not binding, there is no need at this time to make a declaration that York’s Fair Dealing Guidelines are representative of fair dealing.

However, while the guidelines issue is moot, the Supreme Court took issue with how the Federal Court and Federal Court of Appeal described and interpreted fair dealing in the institutional context. While the Court’s statements on this is issue are “obiter dicta”, they are nonetheless important.

“While I therefore agree that the requested Declaration should not be granted, this should not be construed as endorsing the reasoning of the Federal Court and Federal Court of Appeal on the fair dealing issue. There are some significant jurisprudential problems with those aspects of their judgments that warrant comment.” (para. 87)

I will discuss the Supreme Court’s decision in more detail in my next post.

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