The Supreme Court of Canada today released its decision in York University v. Access Copyright, 2021 SCC 32.  The case addressed two issues: whether Access Copyright’s Copyright Board tariff is mandatory, and whether copying by York pursuant to its Guidelines constitutes fair dealing.  Both courts below had ruled the tariff not mandatory and the Guidelines unfair.

In a unanimous decision penned by Justice Abella (in her last case on the bench), the Court found that the tariff was not mandatory and so was unenforceable against York, and in light of the absence of any real legal issue between York and Access Copyright, that it would be inappropriate to decide the fair dealing issue. 

However, the Court cautioned that this result should not “should not be construed as endorsing the reasoning of” the courts below, citing “some significant jurisprudential problems with those aspects of their judgments that warrant comment.”  The Court went on to “correct” those “errors” [para. 87-88]

Highlights of that analysis include:

  • User rights remain central to copyright: “increasing public access to and dissemination of artistic and intellectual works, which enrich society and often provide users with the tools and inspiration to generate works of their own, is a primary goal of copyright.” [para 92]  “A proper balance ensures that creators’ rights are recognized, but authorial control is not privileged over the public interest.” [para 93]
  • End users’ purposes remain central to fair dealing analysis: Both lower courts “approached the analysis from an institutional perspective only, leaving out the perspective of the students who use the materials.” [para 98]
  • Institutional purposes are also relevant:  “Both [institutions’ and end users’] perspectives should be taken into account.” [para 98]
  • “Systemic” activities can qualify for fair dealing:  “ this Court cautioned in SOCAN, ‘large-scale organized dealings’ are not ‘inherently unfair’.” [para 105]
  • Fair dealing guidelines remain essential to ensure that users obtain the benefit of their fair dealing rights.  Guidelines help overcome users’ lack of familiarity with the rights copyright law grants users. [para 85]

CIPPIC had intervened before the Supreme Court on a number of those issues, including the crucial role fair dealing plays in achieving important public policy objectives, the importance of users’ purposes in assessing the purposes of an intermediary’s dealing, and universities’ unique role as cradles of authorship and innovation.