Author: Lisa Di Valentino

AI and fair dealing / fair use

This blog originated over 10 years ago with the intention of talking about the Access Copyright v. York University case that was brought in April 2013, and which moved through the appeals system until the Supreme Court finally published their decision in August 2021.

However, since that time there have been a couple of developments that I will be discussing here that are related to fair dealing and education:

  1. The recent Alberta v. Access Copyright (2024 FC 292) case, in which the Federal Court ruled that the plaintiff Ministries of Education and school boards were not statutory licensees (i.e. not automatically subject to tariff) and thus were not liable to pay royalties under statute nor equity to Access Copyright. (Howard Knopf has provided an assessment of the case in his blog.)
  2. The increasing use of artificial intelligence (AI) in everyday life (including in education) and its implications for copyright policy. I am in the midst of researching copyright issues in AI, specifically the application of a fair dealing / fair use right to the incorporation of copyrighted works into generative AI programs such as ChatGPT and Midjourney, and how such application might differ between the U.S. and Canadian law.

Watch this space for updates as my research proceeds!

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Discussion of York University v. Access Copyright, 2021 SCC 32

Eight years and four months after Access Copyright brought legal action against York University in the Federal Court, the Supreme Court of Canada (SCC) published their unanimous decision on the applicability of copyright tariffs. They also — although this does not count as precedent — commented yet again on the correct interpretation of the fair dealing factors in an educational context. My set of blog posts discussing the various filings and decisions can be found here.

Continue reading →
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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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Is it really over? Access Copyright v. York University Supreme Court decision is on its way.

The Supreme Court of Canada are publishing their decision on the Access Copyright v. York University copyright case on Friday, July 29. I’ve been following this case and writing about it on my blog since the action was filed eight (!) years ago: see https://fairdealingineducation.com/tag/york-university/

Considering the decision is coming only two months and some days after the hearing, I expect the SCC will uphold the verdicts of the Federal Court of Appeals that the tariff is not mandatory, and that York’s Fair Dealing policy does not accurately reflect the interpretation of fair dealing that the SCC has previously put forth. Maybe they will add a bit of commentary of their own, I don’t know. But I don’t think we’re going to be falling out of our chairs. 🙂

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Education is the key : discussion of Access Copyright v. York University (2020 FCA 77)

Last week, the Federal Court of Appeal (FCA) released its decision in the Access Copyright v York University appeal from the Federal Court (FC). My discussion of the trial judgment can be found here.

Michael Geist’s analysis of the FCA’s decision is here.

In summary, the FCA ruled that the interim tariff requested by Access Copyright, and granted by the Copyright Board, is not mandatory; and that copies made under York’s fair dealing guidelines (“Guidelines”) are not necessarily fair dealing. (para. 4) Continue reading →

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Federal Court of Appeals decision in Access Copyright v. York

The Federal Court of Appeals has released its decision in the appeal of the Access Copyright v. York case. Howard Knopf has helpfully provided links to the order and reasons in his blog Excess Copyright.

Long story short: The interim tariff is not mandatory, but York’s fair dealing guidelines cannot be declared as representative of fair dealing.

A more in-depth discussion of the decision will be posted on this blog sometime during the week.

Here is Michael Geist’s post on the decision.

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Access Copyright renewals update 2019

Updated: May 21, 2019

This is a 2019 update to the last post from February 2016. It’s been nearly two years since the Federal Court handed down its decision in Access Copyright v. York University (July 12, 2017), ruling that York must pay royalties for its use of copyrighted materials, and that the school’s fair dealing guidelines were neither reliable nor representative of the fair dealing exception. York have appealed the decision to the Federal Court of Appeals, which heard arguments on March 5 and 6, 2019.

While the decision only applies to York, other Canadian universities have been paying close attention. One might expect that schools would flock (back) to Access Copyright to save themselves from a similar lawsuit, but it looks like that hasn’t been the case. No university has entered into an Access Copyright license that was not already subscribing to the service. A few – Dalhousie, Lakehead, Regina, and Trent – did not renew their licenses that in 2016.

Overall, the proportion of universities that do not have a blanket license with Access Copyright increased from 37.5% in 2015, to (at least) 57.8% in 2016, to 76.2% in 2019. Conversely, the proportion of universities that have entered into a license decreased from 59.4% in 2015 to 19% in 2019.

Continue reading →

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Geist: Misleading on Fair Dealing

Michael Geist has been writing a series of articles on misleading claims about fair dealing made by various copyright stakeholders over the past few months. I highly recommend reading all of them, as they give a comprehensive overview of the attempts of copyright maximalists to erode the rights of users as recognized by the Supreme Court.

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Access Copyright v. York University

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, part one of the lawsuit has been decided. 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.

[Michael Geist’s analysis of the York decision can be found here.] Continue reading →

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My article “Awareness and Perception of Copyright Among Teaching Faculty at Canadian Universities” has been published in Partnership: The Canadian Journal of Library and Information Practice and Research, vol. 10, no. 2 (2015).

ABSTRACT:

This article describes the background, methodology, and results of a study undertaken in 2014 to determine university faculty awareness and perceptions of copyright as it affects their teaching. An online survey questionnaire was distributed to teaching faculty across Canada, seeking feedback about the copyright policies and training opportunities at their institutions, where they go for copyright assistance, and how they would respond to various copyright-related scenarios that may arise in the course of teaching.

Most of the respondents are aware of the copyright policies or guidelines at their universities, but much fewer know whether or not their institution offers copyright training. Of those who are aware of training opportunities, only one third have taken advantage of them. When needing assistance, faculty members are most likely to go to a librarian or to the institution’s copyright policy.

Responses to the four scenarios suggest that faculty members are more likely to share digital copyrighted materials (including online works) with their students, whereas they are more likely to ask permission or guidance when it comes to print materials.

Comments from the respondents touch upon issues of the complexity of copyright, and the often time-consuming process of obtaining permissions for the use of copyrighted materials in teaching.

This study was supported by an Ontario Graduate Scholarship.

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