Fair dealing policy to be tested by lawsuit


What does the university’s Fair Dealing Policy mean?  It means that Royal Roads is part of a Canadian community of universities which together have crafted and adopted a policy, soundly based on the Copyright Act and Supreme Court of Canada decisions, which allows us to use various resources in the physical and virtual classroom.  It means that our students can access readings that support their learning, and that our researchers can make copies of works for their research without having to pay excessive fees.  It means that an instructor can create a presentation from a variety of sources for the classroom.  It means that, while the university still pays for resources used in ways that are beyond the scope of the Fair Dealing Policy, we are able to keep copyright costs in check.

On May 16th, the Access Copyright v. York University trial begins in Federal Court.  At issue is their adoption of a fair dealing policy while forgoing a license with Access Copyright.  At stake is the legal standing of fair dealing policies adopted by universities all over Canada, and also whether or not a tariff can be considered mandatory and educational institutions obliged to operate under the tariff.

There are reasons for optimism:

  • On May 22, 2015, the Copyright Board of Canada’s decision on the Access Copyright’s proposed provincial tariff set fees far lower than proposed by Access Copyright, having found that a large part of government copying is allowed under fair dealing, and reinforced the Supreme Court of Canada’s direction that fair dealing be given a large and liberal interpretation.
  • On February 19, 2016, in the K-12 Tariff decision, the Copyright Board again found that a significant portion of the copying done in the K-12 sector is fair dealing.
  • On February 29, 2016, the Quebec Court dismissed the Copibec class action lawsuit (filed in 2014) against Laval University.  The Copibec lawsuit was similar in tone to the Access Copyright suit against York University.
  • On November 26, 2015, the Supreme Court of Canada’s decision in the CBC v. SODRAC case indicated that the Copyright Board’s tariffs do not have mandatory binding force over a user, that “the Board may not compel a User to agree to the terms of a license against the will of the User.”

Still, the Federal Court has not dismissed the case, and in fact has allotted 15 days for the trial.  This is a case to watch closely, as the outcome will determine how all Canadian universities deal with copyright.

For more information, contact Melanie Wrobel in the Copyright Office or call 250-391-2652.