Some initial thoughts about yesterday’s highly anticipated FCA ruling in York University v Access Copyright—a hugely important case about educational copying, collective licensing & fair dealing in (in the midst of grading, homeschooling & a global crisis...but here goes!)/1 https://twitter.com/howardknopf/status/1253031697169383425

The case is a victory for the university insofar as it’s a pretty devastating loss for Access Copyright—the collective has no right to impose its license on educational institutions that choose to opt out; nor does it have standing to sue them for © infringement. This is huge! /2

Credit to @relkatz, whose article is described as “very useful in addressing the question of the enforceability of tariffs.” https://works.bepress.com/ariel_katz/26/download/. @howardknopf has also long been beating the non-mandatory tariff drum. York didn’t lead the charge on this issue & owes them /3

Alas, the fair dealing ruling isn’t a cause for celebration. In a lacklustre analysis of fairness factors, the FCA upheld the TJ’s ruling, denying York’s counterclaim that copies made under its Fair Dealing Guidelines are not infringing. Disappointing but not disastrous...? /4

The reasoning repeats some well-documented errors made by the trial judge, esp wrt to purpose + amount ( http://www.michaelgeist.ca/2017/07/ignoring-supreme-court-trial-judge-hands-access-copyright-fair-dealing-victory/). It rejects York’s attempts to reorient the analysis towards students as end-users + gives short shrift to the Sup. Crt’s ruling in Access v Alberta./5

As @CAUT_ACPPU argued, the institution/student dichotomy here overlooks the user rights of faculty & instructors dealing for educational purposes. Also, there’s no principled engagement with the concept of user rights, balance, or education as advancing the purposes of © law.../6

But I’m hopeful. York made this about the Guidelines. If (when) appealed, surely we can expect a broader FD analysis that resonates with past SCC jurisprudence? And the FCA’s rigorous (arduous!) review of collective licensing is solid + consistent with the SCC’s SODRAC ruling/7

...In the meantime, surely Access Copyright should consider changing its litigious tactics: either institutions want its license or they opt out and it’s irrelevant. So how about offering a license that’s affordable + actually facilitates educational copying in the digital age?/8

Okay, now back to Grade 4 geometry! /fin