York University v. The Canadian Copyright Licensing Agency (Access Copyright), 2020 FCA 77
Justice Pelletier; Justice de Montigny; Justice Woods - 2020-04-22
Read full decision. Summary prepared by Alan Macek:
Access Copyright sued York to enforce the interim tariff, seeking various remedies including royalties as provided in the tariff. York counterclaimed, seeking a declaration that all copying which fell within the terms of the Guidelines constituted fair dealing ... As a result, I conclude that a final tariff would not be enforceable against York because tariffs do not bind non-licensees. If a final tariff would not be binding, the conclusion can hardly be different for an interim tariff. ... As a result, the validity of York’s Guidelines as a defence to Access Copyright’s action does not arise because the tariff is not mandatory and Access Copyright cannot maintain a copyright infringement action. Therefore, I would allow York’s appeal from the judgment of the Federal Court [see 2017 FC 669] with costs, set aside the Federal Court’s judgment, and dismiss Access Copyright’s action with costs. ... The prayer for relief of York’s counterclaim seeks a declaration that “any reproductions made that fall within the guidelines set out in York’s “Fair Dealing Guidelines for York Faculty and Staff (11/13/12)” ... constitute fair dealing pursuant to sections 29, 29.1, or 29.2 of the Copyright Act”. It is apparent from this that the Guidelines are the heart of York’s position in this litigation. Given the relief which York sought, it was incumbent on it to justify the Guidelines themselves so as allow the Court to declare that reproductions that fall within the Guidelines are fair dealing. It has not done so.
Decision relates to:
- A-259-17 - YORK UNIVERSITY v. THE CANADIAN COPYRIGHT LICENSING AGENCY which is an appeal from 2017 FC 669 in T-578-13