On April 22, the Federal Court of Appeal in Canada, handed down its decision in Access Copyright v York University, finding that the copying Guidelines used by York University to provide course materials to students exceeded the scope of educational fair dealing in Canada. Roanie Levy, President, CEO, Access Copyright ©WIPO. Photo: Violaine Martin
As a result, the guidelines used by educational institutions across Canada, which are essentially the same as those used by York, are illegal.
However, in a disappointing aspect of the decision, the Court also found that Access Copyright’s tariffs which were certified by the government’s Copyright Board are unenforceable against York University.
Access Copyright says:
The decision by the Federal Court of Appeal sends an untenable message for rightsholders: educational institutions that are following the education sector’s fair-dealing guidelines are copying unfairly, but the collective that has been authorized by thousands of rightsholders to administer and protect their copyright has no avenue to enforce their rights in their work.
The deadline for appealing the decision to the Supreme Court is 22 June. It is not yet known if either party intends to appeal.
IFRRO welcomes the clarity that the decision brings to the scope of fair dealing in Canada, particularly the Courts assessment that the massive and systematic nature of the copying in question distinguished this situation from earlier Supreme Court cases considering fair dealing.
It is also welcome that the Federal Court of Appeal did not disturb the Federal Court’s finding of the significant negative economic impact on authors and publishers of the copying, including the loss of licensing income from Access Copyright, as quantified in a report from PwC.