I recently spoke to the very worthy ABC Copyright group, which has been holding conferences since 2003, to which I’ve often contributed. My topic this year was:
To “Actualize” Users’ Fair
Dealing Rights:
Guidelines If Necessary But
Not Necessarily Guidelines
This and several
other presentations, including a keynote from Sara Bannerman, are available at
the conference archive here:
https://dalspace.library.dal.ca/collections/241d04d2-aa6d-4618-86cc-df08b1221741
We did have
a brief appearance at the conference from Universities Canada, from which we have long been waiting
for an updated version of its outdated and problematic fair dealing guidelines
and documents. I shall let you know if and when we see some white smoke from
that source.
The notion
of actualizing user’s fair dealing rights flows from Justice Abella’s landmark
Supreme Court of Canada ruling in the York University case
from nearly four years ago, in which I was honoured to act for the intervener CARL with what turned out to be a very influential
intervention. Here’s the decision:
York University v. Canadian Copyright Licensing Agency
(Access Copyright), 2021 SCC 32 (CanLII), [2021] 2 SCR 734, <https://canlii.ca/t/jh8bc>
Here’s the
webcast: https://www.scc-csc.ca/cases-dossiers/search-recherche/39222/
Here was Justice
Abella’s closing comment from the decision:
[106]
At the end of the day, the
question in a case involving a university’s fair dealing practices is whether
those practices actualize the students’ right to receive course material
for educational purposes in a fair manner, consistent with the underlying
balance between users’ rights and creators’ rights in the Act.
Since we are not deciding the merits of the fair dealing appeal brought by
York, there is no reason to answer the question in this case.
(highlight & emphasis added)
HPK
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