On July 30, 2021, the Supreme Court of Canada (SCC) delivered its judgment in York University v. Canadian Copyright Licensing Agency (“Access Copyright”) (2021 SCC 32). In a unanimous decision, the SCC found that tariffs set by the Copyright Board of Canada are not mandatory and that users are not bound by them unless they voluntarily accept their terms. Given the SCC’s ruling on the enforceability of the tariff, it subsequently found that it would be inappropriate to assess York University’s Fair Dealing Guidelines, as there was no active dispute between the parties on copyright infringement. Despite this, the SCC refused to endorse the reasoning of the lower courts when it came to their assessments of the fairness of York’s Fair Dealing Guidelines. The SCC found that the lower courts approached their fairness analyses only from an institutional perspective, ignoring individual students’ perspectives. According to the SCC, this error tainted the analysis of several fairness factors in both lower court decisions.
The SCC’s decision in this case has been long-awaited by higher education institutions and its decisive and unambiguous ruling on the issue of mandatory tariffs ensures that UBC will be able to continue to manage copyright through the exercise of user rights and the purchase of transactional and other licenses in support of our community’s educational and research needs.
For additional commentary on this case, please refer to the following statements: