The implications of last week’s Supreme Court of Canada copyright decisions seem readily apparent to just about everybody – other than Access Copyright. There have been numerous posts analyzing the decisions (here
, and here
), all of which recognize the expansion of fair dealing (my posts on fair dealing as fair use
and on technological neutrality
). Yet in a release
posted hours after losing at Canada’s highest court, the copyright collective implausibly claimed that the decision “will have a limited impact on the importance of the Access Copyright licence to the education community” and that it “leaves copyright licensing in the education sector alive and well.” To support the claim, Executive Director Maureen Cavan argued that the specific case only covered about seven percent of the copying done in K-12 schools. The Access Copyright claims were echoed in a release
from The Writers’ Union of Canada.
The reaction was reminiscent of the last time Access Copyright lost big at the Supreme Court. Immediately after the CCH decision was issued in 2004, Access Copyright’s release stated that “this ruling does not change the fact that most copying of copyright protected works does not fall under fair dealing. The Supreme Court stated definitively that copyright does exist in original works, and that is why organizations must sign an Access Copyright licence or risk breaking the law.”
The strategy of claiming that little has changed may have worked with some institutions after CCH, but it is very unlikely to do so this time. It is true that the specific case involved a small percentage of overall K-12 school copying, but the court’s fair dealing analysis applies to all copying, not just the copies at issue. In this specific case, the court ruled the Copyright Board’s analysis of the fair dealing six factor test was unreasonable, an unmistakable signal to reverse its ruling. More broadly, the decision eviscerates the current Access Copyright business model that is heavily reliant on educational revenues. The decision does not create a free-for-all – schools will continue to spend hundreds of millions of dollars every year on books, database licences, and transactional licences – but the need for an additional Access Copyright licence for schools at all levels is now unquestionably in doubt.
Just how badly did Access Copyright fare at the Supreme Court?
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Last week, I posted
on the significance of the Supreme Court of Canada’s five copyright decisions with an emphasis on the shift from fair dealing to fair use. This week, I have several additional posts planned including one on the implications for Access Copyright as well as a broader examination of how the court has elevated users’ rights within Canadian copyright law. This post focuses on the second major development in the cases: the articulation of technological neutrality as a foundational principle of Canadian copyright. The technological neutrality principle could have an enormous long-term impact on Canadian copyright, posing a threat to some copyright collective tariff proposals and to the newly enacted digital lock rules.
The technological neutrality principle is discussed in several cases, but gets its most important airing in the Entertainment Software Association of Canada v. SOCAN decision. The majority of the court states:
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When the U.S. invited Canada to join the Trans Pacific Partnership negotiations last month, there was an agreed upon delay to allow it to complete a domestic approval process. As part of that delay, Canada was to be excluded from the negotiations during the approval period and bound by any […]
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The UK government is set to announce that all research funded by the government will be mandated as open access by 2014, ensuring that all taxpayer funded research will be freely available to anyone anywhere in the world.
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The reverberations from yesterday’s Supreme Court of Canada copyright decisions will be felt for years (good coverage of the decisions include posts from Mark Hayes
, IP Osgoode
, Barry Sookman
, Howard Knopf
, the Toronto Star
, and the CBC
). While much of the coverage has focused on the music downloading issue, the continued expansion of fair dealing is perhaps the most significant development.
I focused on the court’s expansive view of fair dealing in an earlier post, but I think it is worth digging a bit deeper to ask whether Canada has now effectively shifted from fair dealing to fair use. The Copyright Act obviously still speaks of fair dealing, but the expansion by the courts and the legislature may have effectively rendered it very close to fair use.
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