A thread on the fair dealing analysis in York v Access Copyright (2020, Federal Court of Appeal, Canada). Some of this draws from material in my book, Drafting Copyright Exceptions. #copyright #fairdealing #AcademicTwitter

1. The fair dealing aspect arose at the instigation of York University. York sought a declaration that copies made in compliance with its fair dealing guidelines were fair dealings. This was rejected at trial and by the FCA.

2. As others have argued, the fair dealing counterclaim was unnecessary. York should have focused its attention solely on the tariff point, which it won in the FCA.

3. In addition, it could be argued that the counterclaim was unwise because the court was not assessing fair dealing against specific allegations of infringement. Analysis of practices was done through expert testimony and sampling.

4. In this regard, Access v York has much in common with the Georgia State litigation, where the 11th circuit looked only at the alleged infringements. To focus on copying practices generally would leave ‘no principled method’ to analysing fair use.

5. There are numerous issues with the FCA analysis. For instance, the trial judge stated that York’s motive was ‘to obtain for free that which it had previously paid for’, a point repeated by the FCA.

6. Even if correct, this consideration is conclusory. If a university has been paying for unnecessary licences (as copies were fair dealings), it is perfectly entitled to change approach. This assessment also downplayed the educational goals of the copying.

7. In addition, quantitative thresholds in the guidelines were criticised by the trial judge and FCA as lacking basis. But 10% thresholds are found in numerous places, including the fair dealing provisions of the Australian Copyright Act.

8. More generally, the FCA drew some tenuous distinctions between the facts of York and those in Access Copyright v Alberta. It is not clear, for example, why the copying in Alberta was ‘ad hoc’ but that in York was ‘systematic’.

9. In conclusion, universities should not over-react to the reasoning in relation to fair dealing. It may remind them of the need for a properly crafted and implemented fair dealing policy, but should not be taken to mean that fair dealing is irrelevant.

[And here is my book - just published - which includes detailed analysis of CCH and later cases, and the fair dealing practices of Canadian cultural institutions.] https://www.cambridge.org/gb/academic/subjects/law/intellectual-property/drafting-copyright-exceptions-law-books-law-action?format=HB