On July 30, 2021, in York University v Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32, the Supreme Court of Canada (SCC) unanimously dismissed an appeal of the decision of the Federal Court of Appeal (as previously reported by the E-TIPS® Newsletter here), upholding the finding that the tariff in question was not mandatory, nor enforceable, against York University (York) since York chose not to be bound by the license. 

Access Copyright filed a proposed tariff with the Copyright Board (the Board) and then applied for certification of a tariff on an interim basis to operate until a final tariff was approved. The Board granted the interim tariff. Initially, York paid the approved royalties and later opted out of the tariff system, not continuing as a licensee. After a lengthy dispute, the Federal Court of Appeal held that York was not bound by the tariffs and that payment was not mandatory.  Access Copyright appealed.

On appeal, the SCC stated that “Section 68.2(1) of the Copyright Act does not empower Access to enforce royalty payments set out in a Board approved tariff pursuant to s. 70.15 against a user who chooses not to be bound by a licence on the approved terms”, and that the provision does not provide for a collective infringement remedy.

The SCC refused to entertain York’s counterclaim for a declaration that reproductions made under its fair dealing guidelines constituted fair dealing.  The SCC held that there was no live dispute between the parties since it had concluded that the interim tariff was not enforceable against York, and Access Copyright had no standing to bring a claim for infringement.

Although the SCC did not rule on the fair dealing issue, it specifically noted that it did not endorse the lower courts’ reasoning regarding fair dealing. The SCC stated that the lower courts approached the second step of the fair dealing analysis solely from an institutional perspective, and that the analysis should have considered the perspective of students who use the materials.  The SCC concluded that “by focusing on the institutional nature of the copying, the nature of fair dealing as a user’s right was overlooked and the fairness assessment was over before it began.”

Summary By: Sharan Johal


21 08 18

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