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.
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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.
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. 
Here’s another guest post I wrote for Samuel Trosow’s blog on the recent Supreme Court decision in R. v. Fearon.
U.S. Supreme Court: Warrant needed to search cell phone of arrested individual
Here is another guest post I wrote for Samuel Trosow’s blog, on the recently-decided U.S. Supreme Court cell phone privacy case Riley v. California.
Supreme Court confirms importance of information privacy and Internet anonymity
Although it doesn’t touch on fair dealing in education, I have written a guest post for Samuel Trosow’s blog on the recent Supreme Court decision in R. v. Spencer, and its implications for information privacy.
A closer look at the rabbit hole
On April 17, 2014, John Degen wrote a blog post bemoaning the lack of clarity in the claims made by educational institutions regarding fair dealing. I hope to be able to shed some light on the issue.
Fair Dealing in Education 