Feb 17, 2021

Intellectual Property/Universities: Copyright

York University v. Copyright Licensing Agency, 2020 FCA 77 (CanLII)
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, and other copying. York defended on the basis 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 it imposed come under the “fair dealing” exception in s. 29 of the Copyright Act. The Federal Court granted Access Copyright a declaration 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 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 Fed. C.A. allowed York’s appeal, set aside the Federal Court decision and dismissed Access Copyright’s action on the basis 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.