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, here, 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?
One measure is to consider the key issues raised by the litigants. The chart below highlights the major issues raised by Access Copyright in its factum to the court and the ultimate decision by the majority. The Supreme Court rejected Access Copyright’s arguments on every one: the role of user rights, the perspective of the copier (teacher or student), the meaning of private study, and whether copying is considered from an aggregate perspective or individual copies. Moreover, a unanimous court dismissed claims of economic harm from the copying (with echoes of the recent Georgia State University fair use decision) and in the SOCAN v. Bell Canada decision also offered an exceptionally expansive approach to research under fair dealing.
|Issue||Access Copyright Factum||Supreme Court Majority Decision|
|User Rights||In CCH this Court raised expectations when it held that fair dealing is a “user’s right”. Those raised expectations have led users like the appellants to ask that the right be clarified and made more predictable. However, this should not come at the expense of
upsetting the balance between users’ and creators’ rights under the Act. In the final analysis, fair dealing is based on considerations of what is fair. That determination should not be sacrificed in the interest of predictability, by replacing a fact-based enquiry with arbitrary rules regarding the fairness of the purpose and the amount of the dealing.
|CCH confirmed that users’ rights are an essential part of furthering the public interest objectives of the Copyright Act. One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision “must not be interpreted restrictively” [SOCAN v. Bell Canada]|
|Copier Perspective||Notwithstanding CCH, the appellants argue that the Board’s fact-based approach to determining fairness was incorrect. With respect to the purpose of the dealing, they state, “[r]ather than trying to determine dominant and subordinate purposes, the dealing should be examined from the perspective of the consumer of the copy”. The appellants’ assertion is unsupported in law and flies in the face of CCH.||In the case before us, however, there is no such separate purpose on the part of the teacher. Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological.|
|Private Study||Even if we were to consider the student’s purpose for using the copied works, it could not be characterized as “private study” in the present case. “Private study” means one’s own study, just as “private copying” in Part VIII of the Act means copying by oneself, for oneself. Although it is possible for a student to be engaged in private study in a public place, this is not what occurs when a group of students is directed by a teacher to read from the same page. In such a case the students may be “learning”, but they are not engaged in “private study” which is an activity conducted on one’s own.||With respect, the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers’ instruction from the students’ studying.|
|Aggregate Copying vs. Individual Copies||there is no sound reason for assessing the fairness of the amount of a dealing on an individual basis only. Such a perspective misses the reality of what occurs in an institutional setting and cannot lead to a proper factual assessment of what is fair||the “amount” factor is not a quantitative assessment based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated.|
Alternatively, consider the decision’s effect on fair dealing in the education sector. It is now clear that all copying within Canadian schools (K-12 and post-secondary) qualifies under the first stage purposes test. Given the very broad approach to research (any personal interest) and private study (treated as personal study) as well as the addition of education as a purpose in Bill C-11, all copying within the education system will pass this step (I would argue that virtually all copying now meets the first stage purposes test given the low threshold and broad interpretation of the purposes).
This means that all educational copying is eligible to be examined under the six factor fairness test. In addition to the court’s emphasis on users’ rights, its analysis strongly favoured an education orientation for the majority of the six factors:
- purpose of the dealing now clearly favours education as the court concluded (1) that research is extremely broad; (2) that instruction is covered by research and private study; and (3) that teachers share a symbiotic purpose with students.
- amount of the dealing must be assessed based on the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated. The overall quantity of copying has long been a major Access Copyright argument (it is even raised again in response to media coverage of the decision), but the court ruled it is not relevant in considering the amount of the dealing.
- alternatives to the dealing also favour education since the court concluded that buying books for every excerpt for every student is not a realistic alternative. The court already ruled in CCH that the availability of a licence is not relevant to deciding whether a dealing is fair.
- effect of the dealing on the work also sided with education as a unanimous court said there was no evidence linking textbook sales declines to teacher copying.
Two other factors were not discussed by the majority in the Access Copyright case. The character of the dealing might favour Access Copyright if there is widespread copying of the particular work, but the nature of the dealing, which examines whether the work is one which should be widely disseminated, is likely to favour education.
The cumulative effect is clear: schools can rely more heavily on fair dealing for the copying that takes place on campus and in the classroom. This includes copies made by teachers for students for instructional purposes, copies that previously formed a core part of Access Copyright’s claim of the necessity of a licence. Indeed, it will be very difficult for educational institutions to justify the Access Copyright licence in light of this decision. This is not to say that entire books will be copied without compensation. They clearly won’t since that copying would likely fail on most of the factors of the six factor test. However, for shorter excerpts – CCH said as much as a full article or chapter in a book – this copying will benefit from a strong fair dealing argument. Since the Access Copyright – AUCC model licence only covers up to ten percent of a print work, the licence largely duplicates fair dealing and is likely to be viewed by educational institutions as unnecessary.