The appointment of Giuseppina “Pina” D’Agostino to the
Federal Court is great news! The Federal
Court, where most of the important intellectual property cases in Canada are
heard, has had only a few judges who come mainly from the IP world.
Prof. D’Agostino has had a prolific, prominent, and influential role in the IP
academy and particularly in
copyright law. She was the Founding Director of IP Osgoode, and organized provocative and
balanced events – for example this conference on the aftermath of the Canadian
Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR
615, <https://canlii.ca/t/gm8b0> decision. I was honoured to have participated
both in the SCC hearing and the subsequent IP Osgoode event. That SODRAC
decision was crucial in turn to the decision in York University v. Canadian
Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), [2021]
2 SCR 734, <https://canlii.ca/t/jh8bc>
which held that Access Copyright’s
“tariffs” on educational institutions are not “mandatory”.
Her 2008 article Healing Fair Dealing? A Comparative Copyright Analysis of
Canada’s Fair Dealing to U.K. Fair Dealing and U.S. Fair Use
proved to be very influential in the
SCC decision in Alberta (Education) v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 SCC 37 (CanLII), [2012] 2 SCR 345, <https://canlii.ca/t/fs0v5>.
See para. 19. This was the only academic article cited by the Court. It was
a balanced and prescient comparative analysis of fair dealing. I am reminded that the intervener factum that I filed with Prof.
Ariel Katz for the intervener Centre for Innovation Law and Policy of the
Faculty of Law University of Toronto was the only factum in that important case
to include her important article (see para. 21). Permit me to point out that she
cited me twice in that article.
Her legacy at Osgoode Hall Law School is in the capable
hands of her colleague Prof. Carys Craig. Both
follow in the footsteps of the illustrious emeritus Prof. David Vaver.
This is a very welcome appointment. We congratulate the Hon.
Giuseppina D’Agostino and wish her all the very best. We look forward to her
jurisprudence for many years to come.
HPK
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