Federal Court Finds University's Fair Dealing Guidelines Are Not So Fair. When Is Fair Foul, And Foul Fair?

The Federal Court yesterday ruled in Canadian Copyright Licensing Agency (Access Copyright) v York University, 2017 FC 669, that York University's “Fair Dealing Guidelines” do not excuse it from having to pay royalties to Access Copyright—a collective that administers the rights of authors and publishers—for copying activities of the University's staff and students. In 2010, the Copyright Board of Canada issued an Interim Tariff requiring post-secondary educational institutions to pay royalties to Access Copyright for certain copying activities, including with respect to digital copies. The University took the position that the Interim Tariff was not enforceable or mandatory, and if it was, that the University had implemented its own “Fair Dealing Guidelines” which, when followed, excused copying activities as fair dealing. The Court upheld the Interim Tariff issued by the Copyright Board, and denied the University's claim that such copying activities were nevertheless excused.

The case has particular significance given the transition over the last 20 years to an increasingly digitized landscape. As recognized by the Court, educational institutions have become reliant on digital and digitized resources, as well as peer-to-peer sharing and other databases and portals as a means to distribute and give access to resources.

Of particular interest is the Court's assessment of the thresholds in the University's “Fair Dealing Guidelines” that set bright lines as to the amount of a work that could be copied. The Guidelines set out that “short excerpts” could be copied, and defined such excerpts as being the greater of either (1) 10% or less of a work; or (2) no more than other set amounts (e.g. one chapter from a book, a single article from a periodical, etc.); and, with the caveat that no more of the work should be taken than required to achieve the fair dealing purpose. While certainly probative, the “amount” of the work copied is not the only inquiry when assessing fair dealing—it is one of several factors to be assessed in weighing the “fairness” of the dealing.

DeterminingFair Dealing is a two-part test: (1) whether the dealing is for an allowable purpose identified in the Copyright Act (including education, research and private study); and, if so (2) whether the dealing is fair in the circumstances. To assess thefairness of a dealing, the Supreme Court has identified six non-exhaustive factors: (1) the purposes of the dealing; (2) the...