policy

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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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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Copyright advice or information?

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.]

Continue reading →

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Canadian university fair dealing policies, part two point five

Further to my previous post, I have expanded the sample to include the smaller universities that are members of the Association of Universities and Colleges of Canada. Again, the table records whether the school has signed a licence with Access Copyright, whether an updated fair dealing policy is available on the web site, whether such policy is based on AUCC’s policy, and whether the school’s web site includes the AUCC’s guidelines for applying the fair dealing policy.

Continue reading →

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Review of Canadian University Fair Dealing Policies

Update: I have made some revisions to the paper, adding Grant MacEwan University to the sample, correcting Queen’s University’s Access Copyright relationship, and removing typographical errors. Much thanks to Scott Day and Mark Swartz for bringing these oversights to my attention. (May 17, 2013)

I have recently made available the results of a project I have been working on since January. I analyzed the fair dealing policies of the top 40 Canadian universities by student enrollment (excluding Quebec) for content and to determine whether there is consistency among the universities, and any relationship between the content in the schools’ copyright web sites and whether they have signed an Access Copyright licence.

The paper is available at the following link: http://ssrn.com/abstract=2263034

This research is particularly timely because of the recent lawsuit brought by Access Copyright against York University, the basis of which is York’s allegedly ineffective fair dealing policy.

Abstract:

The past three years have seen a number of changes in the area of copyright law, particularly in the area of education. As a result, Canadian universities have had to make policy decisions to account for these changes and the resulting expansion of fair dealing rights. The content and consistency of the resulting policies may have a significant effect on the future interpretation of fair dealing rights. In this paper I analyze the current state of fair dealing policies and supporting information found on university web sites. I conclude that an ideal fair dealing policy is open ended and flexible, and incorporates mention of the significant elements of copyright legislation, court decisions, and other areas of law, in a way that is accessible to its intended audience of faculty and instructors.

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