Document Type

Unpublished Paper

Publication Date

4-5-2021

Keywords

copyright, copyright law, fair dealing, fair use, copyright user right, copyright infringement, exception to copyright infringement, education, copyright collective societies, copyright tariffs

Abstract

In York University v The Canadian Copyright Licensing Agency (2020), the Federal Court of Appeal was confronted with two issues at the heart of ongoing debates in Canadian copyright law. First, whether tariffs of copyright collective societies are mandatory. Second, and the main focus of this case comment, how should the fair dealing doctrine be interpreted with respect to the purpose of education. The Federal Court of Appeal upheld the Federal Court decision that York University Fair dealing Guidelines did not meet the fair dealing requirements in copyright law. This case comment highlights how the Federal Court and Federal Court of Appeal failed to consider important contextual elements of York University Guidelines that might have led to different conclusions. It provides some guidance on how fair dealing for the purpose of education should be interpreted. While fair dealing has been characterized as a “user right” by the Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada (2004) and subsequent decisions, this case comment points to some of the shortcomings of fair dealing as a vehicle to promote greater access to educational materials. It concludes by highlighting the challenges that lie ahead on the application of fair dealing to educational institutions, and by broadening the debate of access to educational materials beyond the fair dealing doctrine.

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