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Access Copyright to the Supreme Court: No Need for Greater Fair Dealing Certainty

With Bill C-32 heading for second reading tomorrow, the inclusion of education as a fair dealing category looms as one of the big issues.  Groups such as Access Copyright oppose the reform and argue that legislative guidance on the scope of fair dealing is needed.  It turns out, however, that Access Copyright is prepared to argue precisely the opposite position when it suits.  This past summer, the copyright collective won a major fair dealing case at the Federal Court of Appeal, leading some education groups to seek leave to appeal the decision to the Supreme Court of Canada.  Access Copyright is opposed to the leave application and its memorandum to the court says the current six part fair dealing test is good enough.  In particular, it argues:

Access Copyright submits that there is no benefit in having this Court determine for all future cases that, where multiple purposes exist, one person’s purpose should prevail over another’s, or that when multiple copies are made, the court shouild look to the aggregate amount of copying in preference to the amount copies from each individual work. Such determinations would clearly be counter-productive since they would confine the future application of the exception and limit the trial judge’s appreciation of what is fair in each particular case.

This Court held in CCH that the six fairness factors provide a ‘useful analytical framework’ which ‘could help determine whether or not a dealing is fair.’ It is recognized that the factors ‘may be more or less relevant’ depending on the facts of each case, and that ‘in some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.’

Thus, in CCH this Court stressed that fairness depends on the facts of each case.  The ‘bright lines’ requested by the Applicants are simply not possible where a case by case analysis is required. The change of any one fact may render a situation that was fair, unfair.

Note that in arguing that the Supreme Court should deny the leave to appeal, it is obviously arguing that the Federal Court of Appeal’s decision should stand.  The decision included the following comment on Bill C-32’s education exception:

I am also aware that Bill C-32, An Act to amend the Copyright Act, 3rd Session, 40th Parliament, 59 Elizabeth II, 2010, section 21 would amend section 29 to state that “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright”. However, this amendment serves only to create additional allowable purposes; it does not affect the fairness analysis. As the parties agree that the dealing in this case was for an allowable purpose, the proposed amendments to the Act do not affect the outcome of this case and no more will be said about Bill C-32.

It is important to stress once again – as the Federal Court of Canada did – that the inclusion of education as a fair dealing category will not open the floodgates to copying, but rather open the door to analysis of whether particular copying meets the fair dealing test that Access Copyright itself is now defending. One would hope that Access Copyright would maintain the same position on C-32 – bright line tests are not possible, the courts have guidance from the six fairness factors, and it is better to maintain flexiblity in the fair dealing doctrine to allow the courts to address on a case-by-case basis using well known criteria.

18 Comments

  1. Interesting. Very interesting. Sounds exactly like politics.

  2. Do you mean that in different instances, AC is asking for different outcomes? I have never heard of this happening before.

    So, someone seeking greater definition of the “digital lock” protections in C-32 would be just like AC then?

  3. john walker says:

    in the copyright collectives world ‘words mean whatever I say they do’.

  4. I have a trivia question … how many orifices can AC talk out of at once?

  5. @Geist and others
    I don’t see a contradiction, and suspect that this story is put out maliciously. AC is consistent in opposing education as an allowable purpose. Their brief to the Supreme Court deals only with whether judicial clarification of the six-step test is needed. Clearly they don’t think it is, especially as they believe the SCC got it all wrong with CCH. In their brief on Bill C-32, they do argue for legislative clarification of fair dealing. That is not the same as judicial clarification. A law professor might be expected to get this right, instead of writing a story intended only to attack AC.

  6. @Bob
    Still sounds like politics. Liking it when it suits them but not liking it when it doesn’t.

    If the judicial one is enough, why is the legislative one needed?

  7. “AC is consistent in opposing education as an allowable purpose.”
    AC is consistent in its sophistry and double speak.

  8. “A law professor might be expected to get this right, instead of writing a story intended only to attack AC.”

    Who is this “Bob,” and why do I feel such a profound respect for him?

  9. @Degan
    Because he happens to agree with you rather than disagrees with you. It’s pretty much a pattern you seem to have that only people you happen to agree with you respect, and everyone else is clearly out to get you.


  10. “Because he happens to agree with you rather than disagrees with you. It’s pretty much a pattern you seem to have that only people you happen to agree with you respect, and everyone else is clearly out to get you.”

    Or radical extremeists!!!

  11. @Chris A
    If I read this correctly, they are not saying that the judicial clarification is needed, rather they seem to be saying the judicial clarification is not only un-needed, it would actually have a detrimental effect, in that it would set precedents that may be unintended. I realize I am reading some into this myself.

    They do seem to be saying that legislative clarification is needed, however. Not sure where this comes from, however it MAY from one of a couple of sources.

    1) The creation of a precedent would have effects on complaints against others; the courts would be guided by these precedents unless the law were changed. Thus if person A is acquitted because a court ruled in their favour, creating a precedent, at the very least person B could expect to acquitted under the same circumstances, even if this went against the legislative intent of the law.

    2) There is a portion of the population of the country that is none too happy with the fact that judges, in essence, create or modify law even though they are not accountable to the public. In that situation they want the courts to implement the law as intended by Parliament (the supremacy, and accountability to the voters, of Parliament is paramount). I am not necessarily in favour of this; personally I believe that the courts should enforce as intended, however that needs to be tempered with the fact that Parliament rarely ever appears to verify that a law is in fact constitutional or that it is in line with the Charter of Rights and Freedoms. Given that the theoretical “chamber of sober second thought” (the Senate) has become an arm of the CPC and LPC, the courts, and the SCC in particular, need to take on that role that is missing in action.

  12. @Anon-K
    That makes a little bit more sense.

    As for the court things, the courts job is to interpret the law. Part of that is using previous rulings, as stated. The other part is ensuring that the law is, in fact, legal. The legislative branch has a tendency to pass laws that are good for getting votes, but may not be completely legal and it’s the courts job, if the law is challenged, to make that judgment call. It’s part of the balancing system, if I understand things correctly.

    So while I can understand that they want more legislative reasoning as to what constitutes fair dealing for education, I have yet to really see a reason why it’s needed when the court, who has to interpret the law either way, has a test to see if the challenged use is fair dealing anyway. So I find it a bit odd that on one hand they are saying that the fair dealing test is good enough to determine if a use is fair dealing while saying that, essentially, it’s not enough so they want to have Bill C-32 say what fair dealing is with regards to education.

  13. @Degen

    “Do you mean that in different instances, AC is asking for different outcomes? I have never heard of this happening before.” Sarcasm or not, this is exactly what most people here are asking for; a system which provides guidance for the assessment of each and every individual case of accused infringement, not blanket policy which attempts to capture each and every conceivable incidence. This, though, would take effort on behalf of people like you and those collectives or conglomerates to collect evidence, make sure it’s admissable and relevent, begine proceedings, and rely on the judicial system to agree with your accusation. Sadly, the more preferred method appears to be keyword searches of Youtube, demanding the removal of services which “could be” employed for infringement (although there are legal uses as well), or submitting settlement letters to preteens or the dead. Maybe if you actually took the time to read what people are posting, rather than trying your best David Spade sarcasm reply to every thread, you might “see this happen” more often.

    @Bob

    I agree that there isn’t a great deal of contradiction in their briefing, however based on their past actions and statements, this seems contradictory to their overall attitude towards copyright. Based on the statements in this article, they have made their bed. I’m willing to give them the benefit of doubt on whether they lie in it, or just plain lie.

  14. Ah, yes… people like me. Let the accusations commence.

    You know what I find funny? The idea that anyone would conspire to put together something like Access Copyright as an elaborate scheme to rip off consumers, all for what amounts to a relatively small amount of money, distributed in even smaller amounts. As “protection rackets” go, it has to be one of the least profitable one ever.

  15. Degen is aptly named
    Because he degenerates in every thread he ever posts in. He starts out with a point, and then degenerates into flinging mud at anything that tries to argue against him.

    Well done, Degen. Well done.


  16. MikeB said:
    “This, though, would take effort on behalf of people like you and those collectives or conglomerates to collect evidence, make sure it’s admissable and relevent, begine proceedings, and rely on the judicial system to agree with your accusation. Sadly, the more preferred method appears to be keyword searches of Youtube, demanding the removal of services which “could be” employed for infringement (although there are legal uses as well)”

    Exactly!!! They take the stance of guilty until proven inocent and in most case the accused can neither be bother or afford to fight it. What I don’t understand is that government allows it. This practise must violate our rights in some way, shape or form.

    Since we’re on the topic of fair dealing, doesn’t C-32 negate the private copying levy? Let’s make no mistake, the recording industry is lying, once anti-circumvention protection is mandated by law they will all use it!! I mean, legaly, if we’re not allowed to copy anything, can they legaly tax us on it? Take blank DVDs and BDs, for instance. 99% of all commercially released DVDs are encrypted using CSS and virtually all BD are encrypted using AACS. C-32 would make it illegal for us to do anything but watch these…no copies for personal use, no back-ups. Can they still legally charge the levy on the blank media when we can’t use the media for which the levy is applied?

  17. @IamME
    If memory serves, the CRIA has changed their tune on the private copying levy; they no longer support it. Of course, this came after it was determined that the existence of the levy brought the copying of owned originals into the realm of legality by the courts, since they are being paid for the possibility of a copy being made… thus they couldn’t sue or whine about unauthorized copying.

    I am not sure about the stand of the Canadian affiliate of the MPAA.

    However, the rationale for the levy would still be valid, since it would cover copying TPM unprotected works. However, a company that uses TPMs should have their cut of the monies distributed from the levy reduced accordingly, or the levy amounts be reduced based on the prevalence of TPM-protected work.


  18. The private copying levy is nothing more than a money grab? Copyright by its original intent and meaning gives a consumer who purchases a work limited rights to copy and reproduce that work for personal reasons. Do we pay a levy on loose paper or notebooks? One could easily transcribe books or sections of books and print them out. C-32, in it’s current form, is an unenforcible joke. The TMPs and anti-circumvention parts have to come out. These belong in end-user licenses, not enshrined in laws…even then, such things should not superceed fair-use. I like the Brazil approach which punishes both sides for violating or abusing rights.