On July 12, 2017, the Federal Court of Canada released a decision in the case of Canadian Copyright Licensing Agency v York University (2017 FC 669 (CanLII)).
In the decision, Justice Phelan ruled that York University did not have a right to opt out of an Interim Tariff established by the Copyright Board (23 Dec 2010; Board Decision (PDF), Interim Tariff (PDF)), and that the actions of York University’s staff – under its “Fair Dealing Guidelines” – did not qualify for protection under the fair dealing provisions of the Copyright Act as such were not fair in either their terms or application. The University had “made no real effort to review, audit, or enforce its own Guidelines... Even Professors operating outside of the Guidelines [were] not held accountable”.
The Interim Tariff had originally been set up by the Copyright Board to deal with the absence of an agreement between Access Copyright – a collective representing the authors of works being copied, e.g., by persons associated with universities – and the Association of Universities and Colleges of Canada (now “Universities Canada”) on the subject of what was owed to the authors for the works being copied in, e.g., course packs made by professors for their students. For several years, it was an open question whether this Interim Tariff established by the Copyright Board was mandatory, precluding any particular academic institution from opting out; evidently, according to the Federal Court ruling, it is.
This case demonstrates that academic freedom aside, there are fairness aspects to copyright rules that require a balancing of interests.
If other Universities across Canada have opted out of the same interim tariff, undoubtedly such are anxious to see if the decision will be appealed.