York University, et al. v. Canadian Copyright Licensing Agency ("Access Copyright"), et al.
(Federal Court) (Civil) (By Leave)
Intellectual property - Copyright, Legislation, Interpretation - Intellectual property - Copyright - Fair Dealing - Legislation - Interpretation - Whether interim tariffs are mandatory - Did the courts below err by failing to apply the fairness factors from the student’s perspective in light of the educational purpose of the dealings - Did the courts below err by focusing on compliance and safeguards akin to an action for copyright infringement - Can York “opt out” of royalties specified in a Copyright Board approved tariff that covers York’s copying - Copyright Act, R.S.C., 1985, c. C-42.
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Access Copyright commenced an action against York University (“York”) to enforce an interim tariff set by the Copyright Board of Canada as it relates to copying activities by York’s employees between September 1, 2011 and December 31, 2013. The fees payable related to the paper copying of course packs for York students, digital copying through learning management systems (“LMS”), and other copying. York defended on the basis that the Interim Tariff was not approved and therefore cannot be enforced but is only binding on consent. York counterclaimed, requesting a declaration that any reproductions made by its employees that fell within the Fair Dealing Guidelines (the “Guidelines”) it imposed come under the “fair dealing” exception in s. 29 of the Copyright Act, R.S.C., 1985, c. C-42 (the “Act”).
The Federal Court granted Access Copyright a declaration that York, either directly or vicariously, from September 2011 to December 2013, reproduced and authorized the reproduction of copyright protected works and must pay royalties to Access Copyright under the interim tariff. The Court held that York’s Guidelines were not fair in either their terms or their application and it dismissed York’s counterclaim and claim for declaratory relief. The Federal Court of Appeal allowed York’s appeal, set aside the Federal Court decision and dismissed Access Copyright’s action on the basis that the interim tariff is not mandatory for users who do not opt for a licence. The Court dismissed York’s appeal of the dismissal of its counterclaim.
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