education

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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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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Awareness and Perception of Copyright Among Teaching Faculty at Canadian Universities

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.

Slides

Speaking notes

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Educational uses of copyrighted work: exceptions and public licences

This afternoon I had a very productive meeting with a nurse/educator at a teaching hospital. She was interested in learning more about the copyright issues associated with the use of medical images taken from the Internet in PowerPoint presentations. We discussed the educational exceptions in the Copyright Act, particularly section 30.01 that allows for the communication of lessons to students enrolled in a course, where the lesson contains copyrighted content; and section 30.04, permitting the reproduction and communication/performance of copyrighted works available through the Internet. (Both of these sections were added in the 2012 round of amendments.) Continue reading →

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