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.

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.