Recent Access Copyright Decision and its Impact on the University of Toronto (PDAD&C #3)

Please circulate to all faculty and other course instructors.

On July 12, 2017 the Federal Court issued its judgement in the first phase of the Access Copyright v York University litigation. The Court concluded that copying being done by York employees was covered by a tariff issued by the Copyright Board, and that this copying was not within the proper scope of the ‘fair dealing’ exception set out in the Copyright Act. Accordingly, York was ordered to pay royalties, in amounts yet to be determined, applicable to the 2011-2013 period. The Court found that York’s Fair Dealing Guidelines were not fair in their terms or in their application.

It is important to note that the York decision is highly fact-specific. It is binding on the parties to that litigation, but not on others, whose practices may differ significantly.

The University of Toronto (like many other Canadian universities) is carefully reviewing the decision from a legal and a practical perspective. The University’s preliminary analysis indicates that the decision is flawed. We are awaiting news, which we hope will be available soon, as to whether York will decide to appeal the case to the Federal Court of Appeal.

Contrary to assertions made over the past week by some coursepack production companies, the decision does not prevent ‘fair dealing’ copying of copyrighted material in appropriate circumstances. As the Supreme Court of Canada has indicated on multiple occasions, the fair dealing provisions of the Copyright Act set out important “user rights” for those wishing to use copyrighted materials. The Federal Court decision leaves these statutory user rights fully intact.

To reiterate, our view is that the decision is fact-specific to York University, and that because U of T was not party to the litigation, it is not subject to the court’s Order. All faculty and course instructors should continue to follow U of T’s Fair Dealing Guidelines as required. We also remind instructors that the Library’s Syllabus Service remains available on a first-come, first-served basis. Course instructors with additional questions should contact:

Scholarly Communications and Copyright Office
University of Toronto Libraries
copyright@library.utoronto.ca