The Fair Dealing Doctrine in Canadian Courts Again?

April 18, 2013 – By Sylvia Hunter, SSP Communications Committee

The Canadian copyright licensing organization Access Copyright announced April 8 that it has filed a lawsuit against York University and an application to the Copyright Board of Canada for a tariff (covering 2014–2017) to maintain the existing process for establishing the royalties that postsecondary institutions pay to use copyright-protected materials.

Access Copyright, a nonprofit, membership‐based organization, grants and administers licenses to institutions that make and distribute copies of copyright-protected works, including universities and other postsecondary institutions. The fees collected are divided among the creators and publishers of registered works, including scholarly and professional associations and publishers.

Following decisions in 2012 by the Supreme Court of Canada that, inter alia, adopted a broad interpretation of the fair-dealing categories of “research” and “private study,” as well as amendments to the Copyright Act, in that same year, some educational institutions – including York University – have opted to replace their Access Copyright license with new fair-dealing guidelines.

York’s guidelines “authorize and encourage copying that is not supported by the law, and … there is no justification for the University to operate outside the interim tariff,” according to a press release from Access Copyright.

The Canadian Association for University Teachers, which represents more than 68,000 teachers, librarians, researchers, and other academic professionals and general staff at Canadian postsecondary institutions, issued its own press release stating the organization is “disappointed” with Access Copyright’s decision to launch this “hopeless” lawsuit.

“Today’s legal actions signal to institutions that we continue to strongly disagree with their interpretation of the law,” notes Access Copyright. “Their copyright policies are arbitrary and unsupported … In contrast, we thank all those institutions that have licenses—your students and faculty members are investing in their futures; in ideas, in reading and in literacy in Canada.”

Sylvia Hunter is Editorial Manager of Journals at the University of Toronto Press.