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    Opposing Views: The Impact Of Canada’s Access Copyright Decision

    Published on 21 September 2012 @ 3:25 pm

    By for Intellectual Property Watch

    One of the five Canadian Supreme Court cases handed down in mid-July considered whether photocopying by kindergarten to grade 12 teachers constitutes fair dealing. Since then, opinions have varied on whether the decision represents a broadening of the fair dealing doctrine or simply fact-specific guidance.

    Province of Alberta v. Access Copyright, 2012 SCC 37, considered whether photocopying performed by kindergarten to grade 12 schoolteachers for the purpose of distribution to their students qualifies for the fair dealing exemption. While all levels agreed that the dealing fell under “research or private study” (s. 29 of the Copyright Act), the Copyright Board found that the dealing was not “fair” after conducting the six-factor test from CCH v. Law Society of Upper Canada, 2004 SCC 13. The matter was then appealed to Federal Court of Appeal and finally, the Supreme Court of Canada where the majority found that the Copyright Board had applied the six factors improperly and chose to remand the case to the Board.

    Access Copyright, the non-profit Canadian licensing agency implicated in the trials, issued a press release 12 July contending that the decision “will have a limited impact on the importance of the Access Copyright licence to the education community.”

    “Only 7 per cent of that copying volume was questioned in the Supreme Court appeal,” Maureen Cavan, executive director of Access Copyright, said in an interview with Intellectual Property Watch alongside a July World Intellectual Property Organization copyright committee meeting.

    “This 7 per cent was not copying done for normal daily use in the classroom so over 90 per cent remains under licence and is not considered fair dealing,” Cavan said. “And the Supreme Court did not give a definitive ruling on that 7 per cent as either being fair dealing or not. It simply defined, or refined, how one should assess whether a dealing is fair or not – it gave some guidance back to the Copyright Board.”

    When asked what the scope of fair dealing includes, Cavan explained “[a] single copy of a short excerpt made by a teacher for her own research to prepare class is likely fair dealing.” However, “[i]f she makes enough copies to pass out to all the students for instruction during the course of her teaching then while that is for a permitted fair dealing purpose it may still not be considered ‘fair’.”

    Cavan also thought that the impact of the case should be quite low. “[T]he media reports and hyperbole about the impact of this actual ruling have been blown quite out of proportion from our perspective,” she said. “The saying that I’m hearing that copyright in educational settings [that is] the copying for students is fair dealing in Canada is simply not true. That’s not the impact of this case.”

    The International Federation of Reproduction Rights Organisations (IFRRO), an international, independent, non-profit organisation representing the interests of collective management organisations and authors and publishers in the field of text and image based works, took a similar position on the matter, emphasising that the appeal involved only 7 per cent of the volume of copying and that the Court’s decision sent the question back to the Copyright Board rather than set a final, definitive ruling. IFRRO also criticised media reporting and blog commentaries, alleging that they “have been misleading, often inaccurate and partly biased insinuation.”

    However, many academic blogs view the impact of the decision very differently. Michael Geist, a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law, believed that the Supreme Court “unquestionably adopted a very broad, expansive approach with respect to interpreting fair dealing.”

    Although the Court remanded the Board’s decision rather than overruling it, Geist still found this to be “a very strong message.”

    “[The Court] has said that the first stage purposes test has a low threshold, that research should be interpreted very broadly (including anything for personal interest), and that private study is not limited to isolated activities,” Geist explained in an interview. “Moreover, it has emphasised the need to consider the amount copied to actual excerpt (not the aggregate copied across all copiers), to allow teachers to copy on behalf of their students, and to provide actual evidence of economic harm, rather than mere speculation.”

    He also argued that the Canadian fair dealing doctrine has made a meaningful change, now essentially functioning like US fair use provisions.

    “The first stage purposes test will be very easy to meet,” he said. “In an education context, there is little doubt that all copying qualifies for analysis under the six-factor, second stage test. Under that second stage analysis, the majority of factors favour education. While that does not mean copying full texts, it does mean that a significant amount of copying within schools and universities is fair dealing under the law.”

    Geist also spoke on international impact, calling it “significant.”

    “As countries increasingly focus on limitations and exceptions, the [Supreme Court of Canada] has provided a road map for achieving better balance within copyright and given unequivocal support for the concept of users’ rights,” he said. “Countries grappling with these issues may look to the Canadian model as they strive to entrench their own users’ rights within the law.”

    In response to the statement made by Access Copyright, Geist said the impact of the case is “seemingly obvious to everyone except the collective.”

    “The issue isn’t about the 7 per cent of copies that provided the impetus for the SCC case,” he argued. “What really matters is the court’s guidance on how to interpret fair dealing. That guidance applies to 100 per cent of the copying that takes place. Given that Access Copyright only provides a licence that covers 10 per cent of a work, the value of the licence is very, very limited since the SCC’s analysis of fair dealing would seem to cover the majority of those copies.”

    The Association of Community Colleges also spoke on the potential influence on a model licence negotiated before Bill C-11 passed and the Supreme Court decision:

    “We have asked our legal counsel to assess the combined implications of the new copyright legislation and the recent Supreme Court ruling on fair dealing. ACCC strongly advocated for Bill C-11 before becoming law and we were an intervener in the Supreme Court hearing on fair dealing. Although we are generally pleased with both, time is needed to assess the full impact these will have on the model licence which was negotiated before the passing of Bill C-11 and the Court’s decision. For this reason, we have asked Access Copyright to extend the July 31 deadline to sign the model licence.”

    ACCC later reported that Access Copyright has declined their request for a deadline extension for the reduced retroactive payment rate and is recommending member institutions to delay signing the model license at this point.  In the statement, it mentioned that the value of the model license has decreased in light of the recent SSC ruling on the K-12 case and the new addition of “education” as a fair dealing purpose in the Copyright Act.

    On the contrary, Cavan maintained that the decision “has nothing to do with post-secondary education.”

    “The impression that is being given by self-interested parties, frankly, that this is a global educational decision by the Supreme Court for all educational uses in Canada is absolutely wrong,” she said. “I think that needs to be clarified and understood.”

    What now for Access Copyright in the aftermath of the Supreme Court decision and Bill C-11’s royal assent?

    “Access Copyright’s role now is to go back to the Copyright Board as the Board reconsiders its decision on this category and continue to present arguments to have that consideration remain a non-fair dealing activity,” Cavan said. “That’s the next step for us.”

    Nancy Situ is a researcher with Intellectual Property Watch. She is a JD Candidate at Osgoode Hall Law School in Toronto. Her interests lie within copyright and trademark policy, especially pertaining to freedom of expression and challenges in an online environment. She is currently an IPilogue editor and the Senior Editor-in-Chief of Obiter Dicta.

    Nancy Situ may be reached at info@ip-watch.ch.

     

    Comments

    1. Russell McOrmond says:

      I find it rich for someone from Access Copyright to suggest it is someone else that is “self-interested”.

      This is an organization that sides with publishers over both the interests of authors and audiences of these works. They want to act as a mandatory intermediary, and disallow direct relationships to allow audiences to pay authors on terms that better serve the interests of authors.

      This case may have focused on fair dealing, but it also expands the ability of authors and educational users to more easily explore alternatives to the Access Copyright license for licensed uses.

    2. Intersect Alert September 23, 2012 | SLA San Francisco Bay Region Chapter says:

      [...] Opposing Views: The Impact Of Canada’s Access Copyright Decision “One of the five Canadian Supreme Court cases handed down in mid-July considered whether photocopying by kindergarten to grade 12 teachers constitutes fair dealing. Since then, opinions have varied on whether the decision represents a broadening of the fair dealing doctrine or simply fact-specific guidance.” http://www.ip-watch.org/2012/09/21/opposing-views-the-impact-of-canadas-access-copyright-decision/ [...]

    3. Global Week in Review 26 Sept 2012 from IP Think Tank | Duncan Bucknell says:

      […] Opposing views: The impact of Canada’s Access Copyright decision (IP Watch) […]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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