In the final presentation, Tom O'Reilly (Field Law) offered
his insights into the ongoing case of Access Copyright v. York
University. Many in the post-secondary world will be aware
that the June 2017 decision of Justice Phelan of the Federal Court,
in the ongoing case of Access Copyright v. York
University. The decision went against York and gave a win to
Access Copyright – finding that York's Fair Dealing
Guidelines were not effective to shield a great deal of the
course-pack and other copying at York, from the fees Access
Copyright claimed to be payable under the Interim Post-Secondary
Tariff for 2011-2013.
Tom noted that York has filed an appeal, and it is quite likely
that regardless of that outcome in the Federal Court of Appeal,
there will probably be another appeal to the Supreme Court of
Canada. Justice Phelan made what appeared to be a number of legal
errors, and questionable subjective calls on interpretation of some
of the key evidence before him, such that there is ample room for
an appeal court to come to different results.
On the "fairness analysis" of the York Fair Dealing
Guideline, Justice Phelan emphasized that York admitted they took
no active steps to look for non-compliance and undertake
enforcement of the copying limits in the Guideline - and the
numerical evidence of the quantity and type of copying showed
between 11% and 27% of the course-pack and other copying at York
exceeded the Guideline limits. The judge felt this made the York
Guidelines entirely unfair.
Tom speculated that the judges on appeal will be aware they are
making a decision potentially affecting hundreds of educational
institutions on the one hand, and thousands of copyright owners on
the other, if they find wholly in favour of one or the other of
York and Access Copyright – so they are going to be thinking
about balancing rights, and the facts and legal issues certainly
present the opportunity for a "saw-off" result of some
kind on appeal.
Tom also anticipated that the potential appeal result will most
likely include a statement by the appeal court to the effect that,
even if York's implementation of the AUCC model fair dealing
guideline was "unfair", the fairness of the AUCC model
guideline adopted at other institutions will have to be assessed on
the individual facts of each institution's implementation. In
that case, Access Copyright's best case scenario is that it
will still have to pursue every post-secondary institution
individually to prove each fair dealing policy is unfair. That will
be impractical, so Access Copyright will likely be in a mood to
negotiate rather than sue further, once the appeal(s) are finally
decided.
Tom advised that, for now, post-secondary institutions should
continue to monitor the case as part of normal risk management, and
monitor their own copying and fair dealing practices to ensure they
are compliant with their own fair dealing guidelines, and generally
with the law of fair dealing. The other focus should be on the
continuing evolution in digital teaching tools and materials, which
within the coming years may make much of the tariff and fair
dealing debate unnecessary.
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