Professor Ariel Katz's research cited in SCC decision, York University v. Canadian Copyright Licensing Agency

On July 30, the Supreme Court of Canada released its decision in York University v. Canadian Copyright Licensing Agency (Access Copyright).

The decision is huge victory for education and educators, ruling that a copyright tariff was not enforceable against York University. The ruling emphasizes that universities are not compelled to deal with Access Copyright but are free to clear their copyright obligations using alternative licensing arrangements and it reaffirms the importance of a broad right of fair dealing, which allows universities to engage in a wide range of copyright-related activities without the need for a licence.

The Court, unanimously, in a decision written by Justice Rosalie Silberman Abella (LLB 1970), her final SCC hearing before her retirement, followed and endorsed Professor Ariel Katz's (SJD 2005) path-breaking work, citing his two-parts article “Spectre: Canadian Copyright and the Mandatory Tariff” (Part I and Part II) six times in the decision.

In addition, the Court accepted the position that Professor Katz, as an intervener with Authors Alliance, advanced on fair dealing and held that it was inappropriate for the court below to consider the issue of fair dealing because Access Copyright had no standing to sue York University for copyright infringement, hence the fairness of York’s actions was not a live issue. The Court agreed that considering that matter in this case resulted in undesirable consequences undesirable and analysis that was inevitably anchored in aggregate findings and general assumptions without a connection to specific instances of works being copied.

The decision builds on two previous cases from in which Professor Katz intervened and where his submissions played a decisive role: Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) in 2012 and Canadian Broadcasting Corp. v. SODRAC 2003 Inc. in 2015.

Professor Katz and Authors Alliance were represented pro bono by Lenczner Slaght attorneys Sana Halwani (JD 2004), Paul-Erik Veel (JD/MA 2009), and Jacqueline Chan (BASc 2012, MASc 2014).