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
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.
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.
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
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.
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.
- Misleading on Fair Dealing, Part 1: Access Copyright’s Inconsistent Claims on the Legal Effect of the 2012 Fair Dealing Reforms (11/19/18)
- Misleading on Fair Dealing, Part 2: Why Access Copyright’s Claim of 600 Million Uncompensated Copies Doesn’t Add Up (11/20/18)
- Misleading on Fair Dealing, Part 3: Data Shows Books Are Rapidly Declining as Part of Coursepack Materials (11/21/18)
- Misleading on Fair Dealing, Part 4: The Shift from Coursepacks to Digital Course Management Systems (11/22/18)
- Misleading on Fair Dealing, Part 5: The Multi-Million Dollar Educational Investment in E-Book Licensing (11/23/18)
- Misleading on Fair Dealing, Part 6: Why Site Licences Offer Education More than the Access Copyright Licence (11/27/18)
- Misleading on Fair Dealing, Part 7: My Appearance Before the Standing Committee on Canadian Heritage (11/28/18)
- Misleading on Fair Dealing, Part 8: The Access Copyright Fight Against Transactional Licensing (11/29/18)
- Misleading on Fair Dealing, Part 9: The Remarkable Growth of Free and Open Materials (11/30/18)
- Misleading on Fair Dealing, Part 10: Rejecting Access Copyright’s Demand to Force Its Licence on Canadian Education (12/3/18)
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.
Copyright expert Lesley Ellen Harris recently posted at IP Osgoode about an important but seldom-addressed issue involving post-secondary institutions and copyright: When a librarian answers a question about using copyrighted works, is she giving legal advice? Given that more universities are opting to handle copyright compliance in-house rather than outsourcing it to a copyright collective, the answer becomes more and more significant. The answer will not be found in my post; instead, I’ll relate some of the thoughts I had after reading Harris’s post.
[Note: The thoughts below are based on the IP Osgoode post; some of them might already be addressed in Harris’s full article upcoming in the Intellectual Property Journal.]
Earlier this month I had the privilege of presenting my research at the 2015 ABC Copyright Conference in Winnipeg, hosted by the University of Winnipeg, the University of Manitoba, and Brandon University.
In the short talk I discussed the results of a survey of Canadian university faculty members undertaken from October to December 2014. The survey sought to determine teaching faculty awareness of copyright law and institutional policy and training, and how they would respond in various scenarios.
Analysis of the results suggests that while faculty members are aware of the existence of their institution’s copyright policy, much fewer know whether their institution offers training. Of those who do know about training, only one-third have attended. However, faculty who have attended copyright training find that their knowledge is enhanced by the experience.
It also appears that respondents are more comfortable reproducing and displaying materials in class that are freely available on the Internet, like YouTube videos and images, but more likely to ask for permission or guidance when it comes to print materials or electronic versions of print materials like PDFs.
The research was supported by an Ontario Graduate Scholarship.
February 23-27 is Fair Use Week, a “community celebration of fair use coordinated by the Association of Research Libraries.”
Here in Canada, we’re celebrating the equivalent (but not exactly the same, of course) Fair Dealing Week. The Scholarly Communications and Copyright Office at the University of Toronto are initiating a nation-wide discussion on fair dealing in Canada, via the Twitter handle @UofTSCCO and the hashtag #FairUseWeek2015.
Copyright and contracts: The fight over information
Fair dealing is a exception to copyright infringement that is granted by the Copyright Act. In 2004, the Supreme Court characterized fair dealing as not only an exception, but as a user’s right that should be interpreted broadly. In 2012, it reiterated that position. That same year, Parliament extended the scope of this user’s right by adding “education, parody and satire” to the list of fair dealing purposes in the Copyright Act. However, copyright owners and database publishers can attempt to limit the reach of fair dealing in contracts granting subscriptions to electronic information. Are these contract terms valid? Professor Samuel Trosow and Lisa Di Valentino will discuss the intersection between copyright law and contract law that has become a significant issue in a world of digital access to knowledge.
Friday, February 27, 2015
12:00pm – 1:20 pm
North Campus Building, Room 293