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York University v. Access Copyright: The Decision is Out

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Capital Perspectives – Newsletter

We are pleased to provide our final update on the York University v. Access Copyright saga as the Supreme Court of Canada released its decision at the end of July.

This decision is the culmination of the dispute that arose between York University and Access Copyright when York University decided to opt out of, or stop paying, the Access Copyright Post-Secondary Schools tariff starting in 2013.

York University, and many other educational institutions of various levels across Canada, made this decision following the Supreme Court decision in Alberta (Education) v. Access Copyright and because of changes in the Copyright Modernization Act in 2012. The case has been watched closely by copyright law enthusiasts throughout Canada as the result will impact the education sector across the country as well as other creative industries.
Readers will recall that there were two issues before the Court: (1) whether the payment of tariffs set by the Copyright Board is mandatory, and (2) whether the Fair Dealing Guidelines adopted by York University are fair.

The Court found, in a unanimous decision, that payment of educational tariffs set by the Copyright Board is not mandatory and that users are free to meet their copying needs through other means. Access Copyright can enforce payment of its tariff against institutions or users that pay or offer to pay its tariff but cannot force its terms on institutions that do not choose to do so.

In terms of the remedy available to copyright owners if there is an unauthorized use of a work by an institution or other user that has not paid the tariff, the Court explained that the proper remedy is for the owner of the work to bring an action for infringement against the user. 

As it found that the payment of Access Copyright’s tariff is not mandatory, the Court declined to decide the second issue of whether the Fair Dealing Guidelines adopted by York University are fair. The Court did, however, say that it does not endorse the reasoning of the Federal Court and Federal Court of Appeal on this issue and specifically pointed out that both courts erred in conducting their analyses from the point of view of the institution rather than each individual student. 

The Court’s decision will have a substantial impact on the education sector in Canada – many educational institutions across the country opted out of paying the Access Copyright educational tariffs starting in 2013 and this decision validates that choice.

Stacey Smydo is an associate with the Fasken Ottawa office who practices with both our litigation and communications practice groups. Within her litigation practice, she specializes in copyright and trademark law. Stacey has acted in matters before the Federal Court, Federal Court of Appeal, the Copyright Board and the Supreme Court.

J. Aidan O'Neill is counsel with the Fasken Ottawa office and a leading expert in Canadian copyright law. He has more than 30 years of experience in tariff proceedings before the Copyright Board and related judicial review applications before the Federal Court of Appeal.