CARL Applauds Supreme Court’s Copyright Ruling on the Application of Tariffs and Fair Dealing

Friday, July 30, 2021. – The Canadian Association of Research Libraries (CARL) welcomes today’s judgment by the Supreme Court of Canada (SCC) in the York University v. Canadian Copyright Licensing Agency (Access Copyright) case. Having intervened in this case due to its importance for research libraries, CARL was pleased to see all our essential arguments upheld by the Court. 

The unanimous and unusually prompt decision, delivered by Justice Abella, dismissed both appeals. Reflecting 85 years of legislative policy and jurisprudence, and reaffirming its previous stance on the importance of user rights as part of a balanced copyright regime, the SCC confirmed that Access Copyright’s tariffs are not mandatory. A tariff binds the collective society in setting a maximum amount for rates, but does not bind a user who has not chosen the collective’s licence to pay compensation under the tariff. This means that universities and their libraries can choose how they manage copyright compliance. 

The Court declined to issue a declaration on York University’s fair dealing guidelines, pointing out that, since the tariff was not mandatory, there was no “live dispute” and that Access Copyright has no basis to sue for infringement. The SCC did, however, opt to point out some important errors made in lower courts in assessing fair dealing, including clarification that fairness must be addressed by assessing individual students’ uses of fair dealing rather than aggregate copying by an institution.

The Court pointed out that guidelines can be “important to an educational institution’s ability to actualize fair dealing,” but that courts should not rule on such guidelines in the absence of a genuine dispute over infringement involving parties with standing, or in the absence of those whose rights are at stake. This is excellent news for universities, libraries, and students. Canadian post-secondary education institutions will now be able to update their guidelines with the SCC’s general observations in mind.

This conclusive SCC ruling will allow research libraries to confidently exercise user rights on behalf of their community and continue to responsibly manage copyright for the benefit of their students and institutions. 

CARL wishes to extend our sincere thanks to our legal counsel, Howard Knopf of Ridout & Maybee LLP, and express our gratitude to the copyright experts, the library community, and all those within the post-secondary sector who have fought tirelessly over years to ensure that the user and public good perspectives were heard in this case.

CARL members include Canada’s twenty-nine largest university libraries as well as two national libraries. Enhancing research and higher education are at the heart of its mission. CARL develops the capacity to support this mission, promotes effective and sustainable scholarly communication, and public policy that enables broad access to scholarly information.

For more information, please contact:

Susan Haigh
Executive Director
Canadian Association of Research Libraries
(613) 482-9344 ext. 101