In the final presentation, Tom O'Reilly (Field Law) offered his insights into the ongoing case of Access Copyright v. York University. Many in the post-secondary world will be aware that the June 2017 decision of Justice Phelan of the Federal Court, in the ongoing case of Access Copyright v. York University. The decision went against York and gave a win to Access Copyright – finding that York's Fair Dealing Guidelines were not effective to shield a great deal of the course-pack and other copying at York, from the fees Access Copyright claimed to be payable under the Interim Post-Secondary Tariff for 2011-2013.
 
Tom noted that York has filed an appeal, and it is quite likely that regardless of that outcome in the Federal Court of Appeal, there will probably be another appeal to the Supreme Court of Canada. Justice Phelan made what appeared to be a number of legal errors, and questionable subjective calls on interpretation of some of the key evidence before him, such that there is ample room for an appeal court to come to different results. 
 
On the "fairness analysis" of the York Fair Dealing Guideline, Justice Phelan emphasized that York admitted they took no active steps to look for non-compliance and undertake enforcement of the copying limits in the Guideline - and the numerical evidence of the quantity and type of copying showed between 11% and 27% of the course-pack and other copying at York exceeded the Guideline limits. The judge felt this made the York Guidelines entirely unfair.
 
Tom speculated that the judges on appeal will be aware they are making a decision potentially affecting hundreds of educational institutions on the one hand, and thousands of copyright owners on the other, if they find wholly in favour of one or the other of York and Access Copyright – so they are going to be thinking about balancing rights, and the facts and legal issues certainly present the opportunity for a "saw-off" result of some kind on appeal.
 
Tom also anticipated that the potential appeal result will most likely include a statement by the appeal court to the effect that, even if York's implementation of the AUCC model fair dealing guideline was "unfair", the fairness of the AUCC model guideline adopted at other institutions will have to be assessed on the individual facts of each institution's implementation. In that case, Access Copyright's best case scenario is that it will still have to pursue every post-secondary institution individually to prove each fair dealing policy is unfair. That will be impractical, so Access Copyright will likely be in a mood to negotiate rather than sue further, once the appeal(s) are finally decided.
 
Tom advised that, for now, post-secondary institutions should continue to monitor the case as part of normal risk management, and monitor their own copying and fair dealing practices to ensure they are compliant with their own fair dealing guidelines, and generally with the law of fair dealing. The other focus should be on the continuing evolution in digital teaching tools and materials, which within the coming years may make much of the tariff and fair dealing debate unnecessary.

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