Access Copyright prevails in "fair dealing" suit against York University

Though it is but one step in what may still be extended litigation, it was heartening to see that after a long struggle, Access Copyright, the Canadian copyright licensing agency, won a suit against York University over copyright infringement. 

It is a test case against York, but could well apply to other universities who took a button in the new Copyright Act and sewed a suit on it, essentially turning "fair dealing" provisions into a wholesale grab for the work of artists and other creators. 

Universities have in recent years opted out of agreements with Access which required fees to be paid for copying digital and hard copies for students, according to a tariff published by Access Copyright. Universities have interpreted the regulations so broadly that writers and publishers had virtually no rights at all to control the use of their work that was deemed for "educational" purposes. 

The guidelines adopted by various universities, including York, said that up to 10% of a given work could be copied, but it effectively meant much more. The result has been that Access, which previously has passed on a modest share of fees to creators, wasn't able to pay but a pittance. Justice Michael L. Phelan  of the Federal court said in delivering judgement,

““The fact that the guidelines could allow for copying of up to 100 per cent of the work of a particular author, so long as the copying was divided up between courses, indicates that the guidelines are arbitrary and are not soundly based in principle.”

“York has not satisfied the fairness aspect of the quantitative amount of the dealing. There is no explanation why 10 per cent or a single article or any other limitation is fair.

"It is evident that York created the guidelines and operated under them primarily to obtain for free that which they had previously paid for.” 

Here is a summary of the judgement.

The full judgement can be obtained from the web site of the Federal Court.