The reaction to last month’s Supreme Court of Canada copyright decisions with Access Copyright continues to play out with its supporters seeking to downplay the likely impact. I’ve already written several posts on the decision, including one explaining why the decision eviscerates Access Copyright’s business model. The short version of that post is that the Court rejected each Access Copyright key fair dealing arguments, in the process greatly expanding fair dealing in the education context such that the Access Copyright licence – which typically only covers 10 percent of a work – will rarely add value beyond what is permitted under fair dealing.
In light of the decisions and recent copyright law reforms, K-12 schools are likely to conclude that they do not need an Access Copyright licence. While the collective and its supporters will react by claiming that this will greatly harm Canadian publishers and authors, the reality is that schools have permission to reproduce the overwhelming majority of materials without Access Copyright or fair dealing.
Access Copyright has argued that the case only focused on 7% of copies, but the truth is that it involved an even smaller amount. The 7% figure stems from the copies for which Access Copyright seeks payment. In fact, the Access Copyright sponsored study that lies at the heart of the K-12 case found that schools already had permission to reproduce 88% of all books, periodicals, and newspapers without even conducting a copyright analysis or turning to the Access Copyright licence.
That study, conducted by Circum Network Inc., tracked the photocopying practices at hundreds of schools across the country with full logging of all copying over two-week periods. The study found a huge amount of photocopying – the Canada-wide estimate was 14 billion copies – but the overwhelming majority have nothing to do with Access Copyright. In fact, once personal copies, unpublished copies, administrative documents, and self-produced documents were accounted for, the number of copies dropped to 4.5 billion. Most of those 4.5 billion copies were taken from books, but there was permission to reproduce nearly 4 billion of the copies without Access Copyright.
This is worth repeating – according to Access Copyright’s own sponsored study, there was permission to reproduce 88% of all books, periodicals, and newspapers without even conducting a copyright analysis or turning to the Access Copyright licence. This is not a free for all – the schools obtained permission (typically through direct licences or permission from the publishers from whom they purchased hundreds of millions in books) to cover 88% of their book, periodical, and newspaper copying. Access Copyright is simply irrelevant for the overwhelming majority of copying even before anyone conducts a fair dealing analysis. Moreover, given that there is permission for 88% of copying, claims that Canadian publishing is at risk or that the fair dealing copying creates significant economic harm are simply false (a unanimous court found no evidence of economic harm).
The study then accounted for public domain works, fair dealing (more about this below), the Access Copyright repertoire, and other exceptions, to arrive at an estimate of 263 million copies that could be subject to an Access Copyright licence. This amounts to just 5.8 percent of the copying of books, periodicals, and newspapers.
The Copyright Board examined the study, heard from witnesses on both sides, and ultimately categorized the copying into five baskets. While the Supreme Court has ruled its findings with respect to fair dealing were unreasonable, it is worth recounting what the Board did. First, it excluded Category 1 (Access Copyright agreed these copies were fair dealing), Category 2 (research or private study even if logged as criticism or review), and Category 3 (fair dealing purpose) copies from the tariff. Second, it ruled that Category 4 copies (made by a teacher with instruction to read) were not fair dealing and thus subject to the tariff. These are the 16 million copies that are at issue in the case and which the Supreme Court strongly suggested are fair dealing.
The fifth category represents the remaining copies – about 230 million copies – that were not even discussed by the Copyright Board. The reason is that both sides agreed to a methodology that excluded millions of copies from consideration as fair dealing. The report defined fair dealing as follows:
Fair dealing for the purpose of research or private study. Two rules apply:
(1) where only one copy was made of the copyright material, this â€¨exception is triggered if
- the copy was made for the person making the copy, or
- for another staff member or another person, at their request, â€¨or
- for a student, at the student’s request and without instructions â€¨to read the material; and
- the copy was made for no other purpose than research or private study;
(2) where more than one copy was made of the copyright material, this exception is triggered if
- the copy was made for another staff member or another person, at their request, or
- for students, at their request and without instructions to read the material;
- and the copy was made for no other purpose than research or private study.
These rules were implemented with logging stickers that specifically asked copiers to identify whether instruction was a purpose of the copying or whether the copying was done at the initiation of the teacher or student. Yet anyone who has read the Supreme Court of Canada decisions will know that this massively understates the scope of fair dealing. The Supreme Court has ruled that it is incorrect to limit fair dealing to copies only made at the request of a student and it has ruled that instruction can be included with research and private study.
Those are the copies that are ultimately at issue since they represent 93% of the tariff costs. The Copyright Board decision states that the educational institutions argued that “virtually all copies made in schools of documents in Access Copyright’s repertoire constitute fair dealing.” The Board never fully grappled with this position and it is unclear whether it is prepared to do so now. Regardless, the schools have permission without Access Copyright for 88% of their book, periodical and newspaper copying leaving Access Copyright to lay claim to just 5.8%. The schools argue that this tiny portion of copying qualifies as fair dealing and given the Supreme Court’s analysis of the six factors, there is no doubt that position has been strengthened and the schools should be developing their copying practices with that in mind.
Access Copyright and its supporters may be threatening more lawsuits, but having been soundly defeated twice at the Supreme Court over the past ten years, seen publishers and collectives face millions in legal fees for a failed fair use lawsuit in the U.S., and seen the government expand educational copying within Bill C-11, schools have little reason for concern. They already have permission to copy 88% of materials with another 6% excluded due to public domain or the limited Access Copyright repertoire. Claiming that the last 6% is fair dealing is consistent with the law and does not pose a significant threat to Canadian publishers and authors, who have granted permission for the vast majority of copying that takes place in schools.