Note to the Community re Leave to Appeal FCA decision


York University has applied to the Supreme Court of Canada for leave to appeal in connection with the April 22, 2020 decision of the Federal Court of Appeal in the Access Copyright litigation.  Specifically, we are asking the Supreme Court of Canada to consider the Court of Appeal’s decision relating to York’s fair dealing guidelines.

In the litigation, there were two key issues: 1) whether an Access Copyright tariff approved by the Copyright Board of Canada is voluntary or mandatory for educational institutions (i.e., a set amount to be paid annually per student fulltime equivalent (FTE)) and 2) whether copying pursuant to York University’s fair dealing guidelines falls within the “fair dealing” exception in the Copyright Act.

Like many colleges and universities in Canada, York University relies on a multi-faceted system of copyright compliance that includes obtaining individual permissions from creators, purchasing library licenses and acquisitions, paying transactional licenses and applying fair dealing when appropriate. Fair dealing is an important exception to copyright infringement that maintains the proper balance between the rights of the copyright owner with the interests of users who require access to copyrighted material to pursue their research, studies and/or education. Our fair dealing guidelines were designed to reflect that balance.  They are used within the system in which the University spends millions of dollars per year on licenses and acquisitions.  Many other colleges and universities across Canada have similar fair dealing guidelines.

The Federal Court of Appeal concluded that the Access Copyright tariff is not mandatory, thereby confirming that colleges and universities across Canada are entitled to rely on other methods of copyright compliance.  The Court declined to declare that copying undertaken pursuant to our fair dealing guidelines constitutes fair dealing under the Act.

Fair dealing remains a crucial users’ right in the educational sphere.  Students should not be required to pay, directly or indirectly, for material that falls within the fair dealing exception.  We believe the Court of Appeal’s analysis on this issue diverges from established law set by the Supreme Court of Canada in previous decisions and that it is a matter of public importance for Canada’s highest court to hear the case.

Access Copyright is also seeking leave to appeal to the Supreme Court of Canada from the Federal Court of Appeal’s decision that its tariffs are voluntary for users.